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KM. SUMBUL NAQVI versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Km. Sumbul Naqvi v. State Of U.P. And Others - WRIT - A No. - 44085 of 2006 [2007] RD-AH 15549 (14 September 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 AT ALLAHABAD

A.F.R

Reserved

Civil Misc. Writ Petition No. 44085 of 2006

Km. Sumbul Naqvi .....Petitioner

Vs.

State of U.P. and others ..... Respondents

Along with connected Writ Petition Nos. 23362/05, 41406/05, 63306/06, 63336/06, 63245/06, 56175/06, 64115/06, 64174/06, 64853/06, 64860/06, 65029/06, 65091/06, 55762/06, 66003/06, 66132/06, 66895/06, 67549/06, 67143/06, 67253/06, 67725/06, 67822/06, 45381/06, 65285/06, 68529/06, 68792/06, 68912/06, 68916/06, 68849/06, 69070/06, 70245/06, 51409/06, 58479/06, 47044/06, 60007/06, 60389/06, 60296/06, 60520-06, 61459-06, 61770/06, 70783/06, 70338/06, 70117/06, 8571/07, 340/07, 14799/07, 760/07, 785/07, 1072/07, 7732/07, 5681/07, 6866/07, 3712/07, 5588/07, 2444/07, 5076/07, 3039/07, 3206/07, 1866/07, 1851/07, 24382/07, 9829/07, 14025/07, 14228/07, 23837/07, 23809/07, 22788/07, 21792/07, 14592/07, 8320/07.

HON. ARUN TANDON, J.

The State of U.P. took a decision on 16.2.2005 to conduct two years Special B.T.C. Training Course (Urdu) for appointment of Assistant Teachers Urdu, against 3000 posts, said to be lying vacant in various institutions situate throughout the State established by the Basic Shiksha Parishad U.P., Allahabad.

In pursuance to the decision so taken an advertisement was published by various District Authorities inviting applications from the prospective candidates for being enrolled for admission to Special B.T.C. Training Course. The qualifications prescribed for being admitted to the said course, were prescribed as graduate, with Urdu as one of the subjects in Intermediate and High School Examinations or a graduate degree from recognized University established by law in India with High School and Intermediate without Urdu but having passed the said examinations in Urdu as additional subject or any other examination in Urdu declared equivalent thereto. The relevant condition of the advertisement reads as follows:

"1- 'kSf{kd ;ksX;rk% fo'o fo|ky; vuqnku vk;ksx ls ekU;rk izkIr fo0fo0@egkfo|ky;ksa ls Lukrd mikf/k/kkjh ,sls vH;FkhZ ftUgksaus fdlh Hkh jkT; ljdkj@dsUnz ljdkj }kjk vuqeU; ijh{kkcksMZ@laLFkk ls gkbZ Ldwy ,oa b.VjehfM,V nksuksa ijh{kk,a mnwZ fo"k; ds lkFk mRrh.kZ dh gksa vkosnu djus ds ik= gksaxs A fo'ofo|ky; vuqnku vk;ksx ls ekU;rk izkIr fo0fo@egkfo|ky;ksa ls Lukrd mikf/k/kkjh ,sls vH;FkhZ ftUgksaus fdlh Hkh jkT; ljdkj@dsUnz ljdkj }kjk vuqeU; ijh{kkcksMZ@laLFkk ls gkbZ Ldwy ,oa b.VjehfM,V ijh{kk fcuk mnwZ fo"k; ds mRrh.kZ dh gks vkSj mlds lkFk jkT; ljdkj@dsUnz ljdkj }kjk vuqeU; ijh{kk cksMZ@laLFkk ls gkbZ Ldwy ,oa baVjehfM,V Lrj ij vfrfjDr fo"k; ds :i esa mnwZ dh ijh{kk mRrh.kZ dh gks vFkok gkbZLdwy ,oa baVjehfM,V Lrj ij vfrfjDr fo"k; ds :i esa mnwZ dh ijh{kk mRrh.kZ u gksus ij] gkbZLdwy ,oa baVjehfM,V dh ijh{kk ds lkFk mnwZ izoh.krk laca/kh ek/;fed f'k{kk ifj"kn] m0iz0 vFkok m0iz0 jkT; ljdkj }kjk led{k ?kksf"kr izoh.krk ls lacaf/kr ijh{kk (gkbZLdwy Lrj ij vnhc rFkk baVjehfM,V Lrj ij vnhc&,&ekfgj ijh{kk] tkfe;ka mnwZ vyhx

Subsequently another Government Order was issued on 18th March, 2006, where under 5000 posts of Assistant Teachers (general subjects) were directed to be converted into those of Assistant Teachers Urdu in order to meet the emergent need of Assistant Teachers having proficiency in Urdu for the institutions run and managed by the Basic Shiksha Parishad U.P., Allahabad. Thereafter another Government Order dated 05.09.2006 was issued whereby another 5000 posts of Assistant Teachers (general subject) were directed to be converted into those of Urdu Teachers. Fresh advertisements in respect of these 10,000 posts of Assistant Teachers with proficiency in Urdu have been published by District Authorities inviting applications for admission to Special B.T.C. Training Course (Urdu)- 2006. Copies of the advertisements are on record.

Under the advertisements so published in respect of the aforesaid Special B.T.C. Training Course (Urdu), the essential qualification prescribed have been mentioned as graduate, with Urdu as one of the subjects in Intermediate and High School Examinations or other qualifications as declared equivalent thereto, as quoted above.

Under the advertisement it has been specifically provided that the Special B.T.C. Training Course (Urdu) shall be of a duration of 2 years. After the candidates complete their training they would be required to appear in the final examination. If they are successful in the final examination, they shall be immediately appointed as Assistant Teacher against the various vacancies available in the institutions established by the Basic Shiksha Parishad U.P., Allahabad. Under the advertisements it has further been notified that during the period of training every candidate shall be entitled to a stipend of Rs. 2,500/- per month.

These advertisements, as published by the State respondents, have been challenged by means of this bunch of writ petitions. Broadly the grounds raised for challenge as discernible from the writ petition can be summarized under following heads:

(a) Qualified teachers are available for appointment against the existing vacancies and therefore the process of direct recruitment through Special B.T.C. Training Course (Urdu) as initiated under the advertisements is totally uncalled for.

(b) The qualifications mentioned in the advertisement for being admitted to special B.T.C. Training Course Urdu and thereafter appointment as Urdu Teachers are contrary to the statutory provisions regulating the appointment of Urdu Teachers in the institutions established by the Basic Shiksha Parishad U.P., Allahabad namely U.P. Basic Education Teachers (Service) Rules, 1978.

(c) Persons (like some of the petitioners), who are graduate with Urdu but had passed High School and Intermediate Examinations without Urdu as one of the subject, cannot apply in pursuance to the said advertisements, which according to petitioners is legally not sustainable in view of statutory Rule of 1978.

(d) Degree of Adhikari from Gurukul Vishwavidyalaya, Vrindavan, which is claimed to be equivalent to graduation and therefore such candidates must also be permitted to apply for the Special B.T.C. Course, have been denied.

(e) Certificate of Munshi obtained from Arabi Farsi Madarsa Board cannot be treated to be equivalent to High School and therefore the stipulation to that effect as mentioned in the advertisement is illegal.

(f) The certificates of Darul Ulum and Nawatul Ulum from Lucknow should be treated to be an equivalent qualification for applying for admission to the Special B.T.C. Course Urdu the issue whereof is already under challenge before this Court.

(g) Holder of Diploma in Teacher's education from Aligarh Muslim University, is equivalent to B.T.C. as per the Government Order dated 26.09.1994 as also in view of the judgment dated 17.01.2006 passed in Writ Petition No. 32760 of 2001 and therefore they challenged the advertisement on the ground that persons like the petitioners are entitled to be appointed against the post of Assistant Teachers Urdu available in recognized institutions before any process for Special B.T.C. Training Course could be started.

In these writ petitions counter affidavit/affidavits have been filed on behalf of various State Authorities of the department concerned. Statement of facts made in these affidavits relevant for the purpose of the dispute at hand are being referred herein under.

On behalf of the Zila Shiksha Avam Prashikshan Sansthan, Fareedpur, Bareilly an affidavit was filed by Sri Banwari Lal Gautam, posted as Senior Lecturer and in paragraph 6 of the counter affidavit it has been stated as follows:

"6. That it is also noteworthy that Urdu as a subject is for the first time introduced in Junior High School or Senior Basic School i. e. to say from class 6 to 8 whereas in the junior basic school or primary school i. e. from class I to V, there is no subject of Urdu as such there was no requirement for appointment of Urdu teacher in the primary section and accordingly applications were invited only from those candidates who have opted Urdu as a subject in the High School as well as Intermediate and at the same time were also graduates. Relevant extract of the curriculum for class 6 to 8 in the senior basic schools or junior high school is filed herewith which indicates at serial no. 3 Urdu as a subject, copy of the relevant extract of the syllabus from class 6 to 8 is being filed herewith as Annexure C.A.-1 to this counter affidavit. Further a copy of the syllabus for junior basis school or primary school i. e. class I to V is being filed herewith which indicates that there is no subject as Urdu in these classes as Annexure C.A.-2 to this counter affidavit."

The Director, State Council of Educational Research and Training, U.P. Lucknow on 10.10.2006 passed an order (Annexure-1 to the affidavit dated 22nd November, 2006). In paragraph 3 it has been stated as follows:

"3. ;kph lk;ek ukt }kjk vius izR;kosnu ,oa ;kfpdk esa m0iz0 csfld f'k{kk (v/;kid) lsokfu;ekoyh 1981 ds iSjk 8A4A dk mYys[k fd;k gS] tks mnwZ Hkk"kk ds v/;kiu ds fy, mnwZ v/;kidksa dh fu;qfDr ds lEcU/k esa gS A tcfd iz'uxr izdj.k csfld f'k{kk ifj"kn }kjk lapkfyr izkFkfed fo|ky;ksa esa f'k{k.k dk;Z djus ds fy, mnwZ izoh.krk/kkjh lgk;d v/;kidksa gsrq nks o"khZ; ch0Vh0lh0 mnwZ fo'ks"k izf'k{k.k gsrq p;u ls lacaf/kr gS A 1981 dh fu;kekoyh ds lkis{k izkFkfed fo|ky;ksa esa mnwZ Hkk"kk ds v/;kiu gsrq mnwZ v/;kidksa ds p;u dk lEizfr dksbZ vkSfpR; gh ugha gS D;ksafd izkFkfed Lrj ij d{kk 1 ls 5 esa mnwZ fo"k; fu/kkZfjr gh ugha gS] tSlk fd izkFkfed Lrj ds ikB~;dze ds voyksdu ls Li"V gS A izkFkfed fo|ky;ksa dh orZeku vko';drkvksa ds vuq:i ,sls mnwZ izoh.krk ;qDr lgk;d v/;kidksa dh vko';drk gS tks Hkk"kkbZ vYila[;d cPpksa dks mudh ekr`Hkk"kk esa i

The statement so made in the order, which was passed in pursuance to the direction of this Court in Writ Petition No. 42430 OF 2006 dated 08.08.2006 has been sought to be explained by the Director, State Council of Education, Research and Training U.P., Lucknow herself by means of supplementary affidavit dated 22nd November, 2006. In paragraph 4 it has been stated as follows:

"4. That the deponent in para 3 of the afore-noted order had simply meant to say that from Classes 1 to 5 students belonging to linguistic minority namely Urdu are taught all the subjects from Classes I to V in their mother tongue (Urdu) through Urdu medium. The Urdu from Class I to V is not separately taken as a specialized subject. The fact of the matter is that Urdu is taught as a specialized subject from Classes VI to VIII. The Urdu teacher appointed as teacher for teaching Urdu normally teaches from Classes VI to VIII. The other teachers who are appointed as Assistant Teachers with the proficiency in Urdu are the persons who teach all the subjects in Urdu medium in Classes I to V to all the students who belong to linguistic minority of Urdu and have their mother tongue as Urdu. Nothing contrary was intended in my order dated 10.10.2006."

Secretary of the Basic Education U.P. Government, Lucknow in his affidavit dated 22nd November, 2006 stated as follows:

"4. That it has been mentioned in para 1 of the order dated 9.11.2006 that the advertisement mentions that training of Special Basic Training Course Urdu is to be imparted for the purposes of appointments as Primary teachers (Urdu) in the institutions which are run and managed by the U.P. Basic Shiksha Parishad at Allahabad. In fact in the advertisement there is no mention that BTC Training Course (Urdu) is for the purposes of appointment of Urdu Teachers in Primary Schools. By means of advertisement applications were invited for the purposes of Two Years BTC (Urdu) Training Course from the graduates who have opted Urdu as subject in High School and Intermediate for the purposes of appointment as Asstt. Teachers having proficiency in Urdu."

Thereafter another affidavit was filed by the same Secretary sworn on 11.01.2007. In paragraph 5 of it is stated as follows:

"5. That the State Government, after approval from the State Cabinet, took the policy decision to conduct Two Years BTC Urdu Special Training Course for appointment as Assistant Teachers having proficiency in Urdu against the posts of Urdu teachers already lying vacant. These assistant teachers having proficiency in Urdu were required to teach Children belonging to linguistic minority all subjects in their mother tongue. Accordingly the G.O. Dated 16.2.2005 was issued."

Having regard to the variance in the statement made in the affidavits with regard to the requirement of the Urdu Teachers and the purpose for special BTC Training Course Urdu, this Court thought it proper to examine the original records of the State Government and therefore the relevant records pertaining to the issuance of the Government Order dated 16.02.2005, dated 18.03.2006 and dated 15.09.2006 were summoned and have been examined by the Court, in presence of the counsel for the parties. Arguments were heard in the matter by the Court on several dates and finally concluded on 29.08.2007.

Sri Abinav Upadhyay, Sri A. M. Zaidi Advocate, Sri Manjoor Ahmad, Sri Manish Kumar Nigam, Sri M.C. Chaturvedi, Sri Krishna Kumar Singh Advocate, Sri K. Shanglu Advocate, Sri Mohd. Azam, Sri Jai Prakash, Sri Kamlesh Shukla, Sri Ram Gopal, Sri D.M. Yada have been heard on behalf of the petitioners and Sri S.M.A. Kazmi Advocate General, assisted by Sri K.S. Kushwaha Standing Counsel, has been heard on behalf of the State respondents and Sri Ashok Khare Senior Advocate, assisted by Sri P.N. Ojha Advocate on behalf of the applicants, who had been selected to the Special B.T.C. Training Course Urdu in pursuance to the advertisement.

The procedure qua Government decisions resulting in issuance of Government Orders has been provided for under the Uttar Pradesh Rules of Business, 1975. Rule 3 and 7 relevant for the purpose of this case are being reproduced herein below:

"3. Disposal of Business- Subject to the provisions of these Rules in regard to consultation with other departments and submission of cases to the Chief Minister, the Cabinet and the Governor, all business allotted, to a department under the Business of U.P. (Allocation) Rules, 1975, shall be disposed of by or under the general or special direction of the Minister-in-charge.

7. Submission of cases to the Cabinet- All cases specified in the First Schedule to these Rules shall be brought before the Cabinet:

Provided that no case which concerns more than one department shall, save in cases of urgency, be brought before the Cabinet until all the departments concerned have been consulted."

The process for starting the Special B.T.C. Training Course Urdu was initiated by an office note put up by the Secretary of Basic Education before the cabinet of the State of U.P. dated 9th February, 2005. A copy whereof has been produced before this Court. The relevant portion of the note reads as follows:

"4- mDr fu.kZ; ds dze esa funs'kd] mnwZ us lwfpr fd;k gS fd dfri; tuizfrfuf/k;ksa }kjk voxr djk;k x;k gS fd ekudksa ds vuqlkj mnwZ i 5- fnukad 11-8-97 ds iwoZ ch0Vh0lh0 mnwZ] eqvfYye mnZw mRrh.kZ vFkok vizf'kf{kr vH;fFkZ;ksa dks mnwwZZZ i 6- ch0Vh0lh0 mnwZ fo'ks"k izf'k{k.k gsrq vH;fFkZ;ksa dks p;u O;kid izpkj izlkj foKkiuksa ds ek/;e ls djkus ds mijkUr vkosnu i= vkeaf=r fd;s tk,axs rFkk blds fy, ,sls vH;fFkZ;ksa dk p;u fd;k tk,xk ftUgksaus gkbZ Ldwy] b.VjehfM,V dh ijh{kk mnwZ fo"k; ls mRrh.kZ dh gks rFkk vH;FkhZ dh U;wure 'kSf{kd ;ksX;rk Lukrd gksxh A bl vH;fFkZ;ksa dk p;u Js"Brk ds vk/kkj ij fd;k tk,xk A

8-A9A- vH;fFkZ;ksa }kjk nks o"khZ; izf'k{k.k dk;Zdze iw.kZ gksus ds mijkUr budh ijh{kk vk;ksftr dh tk,xh rFkk ijh{kk esa lQy gksus okys vH;fFkZ;ksa dks izns'k ds csfld f'k{kk ifj"knh; izkFkfed fo|ky;ksa esa lgk;d v/;kid ds :i esa fu;qDr fd;k tk,xk A

A12A izns'k 'kklu }kjk fufnZ"V ds izfr ch0Vh0lh0 mnwZ fo'ks"k izf'k{k.k gsrq p;fur vH;fFkZ;ksa dks izf'k{k.k vof/k esa :0 2500 dh Nk=o`fRr ALVkbZis.MA izfrekg ns; gksxh A

9- mijksDr izLrko ij foRr foHkkx dk ijke'kZ fuEuor~ gS %&

m0iz0 csfld f'k{kk ifj"kn }kjk lapkfyr izkFkfed fo|ky;ksa esa mnwZ f'k{kdksa dh fu;qfDr djk;s tkus ds lEcU/k esa iz'kklfud foHkkx }kjk ek0 eaf=ifj"kn ds mi;ksxkFkZ rS;kj djk;h x;h fVIi.kh esa foRr foHkkx dk vfHker fuEuor O;Dr dj fn;k tk;%&

A1A m0iz0 csfld f'k{kk ifj"knh; fo|ky;ksa esa mnwZ v/;kidksa dh fu;qfDr gsrq vgZrk iqufuZ/kkfjr djk;s tkus ij foRr foHkkx dks vkifRr ugha gS A

A2A mDr mnwZ v/;kidksa dks LvkbisaM rHkh fn;k tk ldsxk tc muds izf'k{k.k dh 'krZ ,oa izfrca/k rFkk izf'k{k.k vof/k orZeku esa py jgs fof'k"V ch0Vh0lh0 izf'k{k.k ds leku gks A

Accordingly a Government Order was issued after following the procedure prescribed under The Uttar Pradesh Rules Of Business, 1975 referred to above.

Thereafter another note was put up by the Secretary to the Minister, Basic Education, which for the first time suggested conversion of 5000 posts of general subjects to that of teachers with proficiency in Urdu. The note was approved by the Chief Minister of the State. Immediately thereafter the Government Order dated 18.03.2006 was issued, the same is reproduced herein below:

"la[;k&724@79&5&2006&43@06

izs"kd

ts0,l0 nhid

lfpo]

mRrj izns'k 'kklu A

lsok esa]

1- funs'kd]

jkT; 'kSf{kd vuqla/kku ,oa izf'k{k.k ifj"kn]

m0iz0 fu'kkrxat] y[kum A

f'k{kk vuqHkkx&5 y[kum% fnukad 18 ekpZ] 2006

fo"k;% m0iz0 csfld f'k{kk ifj"kn }kjk lapkfyr izkFkfed fo|ky;ksa esa mnwZ dh izoh.krk j[kus okys f'k{kdksa dh fu;qfDr fd;s tkus ds laca/k esa A

egksn;]

mijksDr ds laca/k esa eq>s ;g dgus dk funsZ'k gqvk gS fd m0iz0 csfld f'k{kk ifj"kn }kjk lapkfyr fo|ky;ksa esa mnwZ fo"k; esa izoh.krk j[kus okys lgk;d v/;kidksa dh deh dks n`f"Vxr j[krs gq, csfld f'k{kk ifj"kn ds vUrxZr lgk;d v/;kid ds cMh la[;k esa fjDr inksa esa ls 5000 inksa dks O;kofrZr djrs gq, Jh jkT;iky }kjk lE;d fopkjksijkUr mDr inksa gsrq Lukrd ;ksX;rk/kkjh vH;fFkZ;ksa dks nks o"khZ; ch-Vh-lh- mnwZ ds fo'ks"k ijh{k.k ds vk;kstu dh Lohd`fr iznku dh tkrh gS A rnuqlkj tuinokj fjfDr;ksa@inksa dk fooj.k@lwph layXu gS A

2- mijksDrkuqlkj vH;fFkZ;ksa ds p;u gsrq fuEukuqlkj izfdz;k viuk;h tk;sxh &

.........................."

The Court may record that for conversion of the post from general subject teachers to Urdu teachers and further for payment of stipend at the rate of Rs. 2,500/- to the candidates enrolled for Special B.T.C. Training Course, against these converted posts necessarily required the approval of the Finance Department in view of Rules 3 and 7 of the Rules of Business, 1975, which was not done nor the note was placed before the Cabinet for its approval.

Thereafter, another note was put up by the Secretary Basic Education, whereby additional 5,000 (Five thousand) posts of Assistant Teachers general subjects were sought to be converted to that of Assistant Teacher with proficiency in Urdu. The note is said to have been approved by the Minister alone. After approval of the Minister the Government Order dated 05.09.2006 had been issued which is more or less identical to the Government Order dated 18.03.2006, quoted above. In respect of this Government Order dated 05.09.2006 the approval of the finance department was not obtained nor it was placed before the Cabinet. Therefore, there had been substantial violation of the provisions of Business Rules of 1975.

However, according to the Advocate General the procedural defects in that regard stand cured in view of the cabinet decision dated 15.01.2007, whereby all the decisions qua conversion of posts, as well as payment of stipend etc to special B.T.C. Urdu trainees had been ratified.

The Court may, therefore, not deal with the issue any further. It is accepted that a decision was taken by the State Government to convert 10,000 (Ten thousand) posts of Assistant Teachers (general subjects) to that of Assistant Teachers, having proficiency in Urdu, for appointment in Basic institutions run and managed by the Basic Education Board.

The Court has now to examine as to whether the decision arrived at by the State Government, for conversion to such large number of posts of Assistant Teachers (general subjects) i. e. 10,000 in number to that of Assistant Teacher with proficiency in Urdu, is legal, fair, just and based on valid material facts or is arbitrary, without any basis and contrary to statutory Rules.

The issue with regard to medium of instruction qua teaching in basic schools established by the Basic Shiksha Parishad U.P., Allahabad may be examined with reference to U.P. Basic Education Act, 1972 and rules and regulations framed there under.

Section 3 of the Act provides for the constitution of the Board. Section 4 lays down the functions of the Board. Sub-section 2 of Section 4, relevant for our purposes, reads as follows:

"4. Function of the Board. (1)...............

(2). Without prejudice to the generality of the provisions of sub-section (1), the Board shall, in particular, have power-

(a) to prescribe the courses of instruction and books for basic education and teachers' training therefor;

(b) ...........

(c) to lay down, by general or special orders in that behalf, norms relating to the establishment of institutions by the Gaon Shiksha Samitis or Municipalities and to superintend Gaon Shiksha Samitis, Gram Panchayats and Municipalities in respect of the administration of institutions, for imparting instruction and preparing candidates for admission to examinations conducted by the Board.

(cc) ............

(d) to exercise supervision and control over basic schools, District Institute of Education and Training, basic training certificate units and the State Institute of Education.

(e) .............

(f) ............

(g) ............

(g-1) ............

(g-2) ............

(h) ............

Provided that the courses of instruction and books prescribed and institutions recognised before the commencement of this Act shall be deemed to be prescribed or recognised by the Board under this Act."

Section 5 lays down that the conduct of business of the Board shall be in accordance with the regulations to be framed by the Board with the approval of the State Government. Section 6 of the Act confers a power upon the Board to make appointment of officers, teachers and other employees as it may be deem fit, with the previous approval of the State Government. Section 13 of the Act confers a power upon the State Government to issue directions to the Board for carrying out its decisions as may be issued from time to time for the efficient administration of the Act. Section 19 of the Act confers a power upon the State Government to make rules for carrying out the purposes of the Act. Sub-sections 2(a) and 2 (c) of Section 19, relevant for our purpose, read as follows:

"19(2)(a). the recruitment, and the conditions of service of persons appointed to the posts of officers, teachers and other employees under Section 6.

(c). the recruitment, and the conditions of service of the persons appointed, to the posts of teachers and other employees of basic schools recognised by the Board."

In exercise of powers under Section 19 of the Act the State Government has framed Uttar Pradesh Basic Education (Teachers) Service Rules, 1981. Rule 2(j) of the 1981 Rules defines "Nursery School" as schools where students are taught in classes lower than class I. Rule 2(h) defines "Junior Basic School" to mean institutions where instructions from classes I to V are imparted, while Rule 2(i) defines Senior Basic Schools to mean institutions where education from Classes VI to VIII is imparted. Thus under the said rules institutions established by the Board have been divided into three categories (a) Nursery Schools (imparting education in classes lower than I), (b) Junior Basic Schools (imparting education from classes I to V) and (c) Senior Basic Schools (imparting education from classes VI to VIII).

Sources of recruitment of teachers for appointment in the said three category of institutions have been provided for under Rule 5 of the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981. Mistresses of Nursery Schools, Assistant Masters and Assistant Mistresses of Junior Basic Schools are required to be appointed by direct recruitment in accordance with Rules 14 and 15. Assistant Masters in Senior Basic Schools and Assistant Mistresses of Senior Basic Schools are required to be appointed by way of promotion in accordance with Rule 18. Rule 5 of Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 reads as follows:

"5. Sources of recruitment. - The mode of recruitment to the various categories of posts mentioned below shall be as follows:

(a) (i) Mistresses of Nursery Schools By direct recruitment as provided in Rules 14 and 15;

(ii) Assistant Masters and Assistant By direct recruitment as

Mistresses of Junior Basic Schools provided in Rule 14 and 15;

(b)(i) Headmistresses of Nursery By promotion as provided in

Schools Rule 18

(ii) Head Masters and Head Mistresses By promotion as provided in

of Junior Basic Schools Rule 18

(iii) Assistant Masters of Senior Basic By promotion as provided in

Schools Rule 18;

(iv) Assistant Mistresses of Senior By promotion as provided in

Basic Schools Rule 18;

(v) Head Masters of Senior Basic By promotion as provided in

Schools Rule 18;

(vi) Head Mistresses of Senior Basic By promotion as provided in

Schools Rule 18;

Provided that if suitable candidates are not available for promotion to the posts mentioned at (iii) and (iv) above, appointment may be made by direct recruitment in the manner laid down in Rule 15."

It is thus apparent that under the aforesaid rules appointment on the post of Assistant Mistresses in Nursery Schools (classes lower than 1) and Assistant Masters and Assistant Mistresses of Junior Basic Schools (classes I to V) run and managed by the Basic Shiksha Parishad U.P., Allahabad are required to be appointed by direct recruitment only. On all other posts, including that of Assistant Masters of Senior Basic Schools and Assistant Mistresses of Senior Basic Schools (classes VI to VIII), appointment is to be made by way of promotion under Rule 18. Only in case qualified teachers for promotion are not available, direct recruitment can be resorted to.

In view of the aforesaid rules, it is apparently clear that direct recruitment is to be resorted to only in respect of appointment of Assistant Teachers in Nursery Schools i. e. where education below to class I is imparted and for appointment of Assistant Teachers in Junior Basic Schools i. e. where education up to classes I to V is imparted.

From the affidavit filed by Sri Banwari Lal Gautam as well as from the order of the Director, State Council of Educational Research and Training, U.P. Lucknow dated 10.10.2006 as well as from the syllabus pertaining to Junior Basic Schools/Primary Schools filed as Annexure C.A.-2 to the affidavit of Sri Banwari Lal Gautam, it is established that Urdu is not being taught even as a language in the Nursery Schools nor in the Junior Basic Schools. Therefore there can be no direct recruitment of Urdu Language Teachers for Primary School/Junior Basic School.

Urdu is being taught as a language subject only in Senior Basic Schools i. e. where education is being imparted from classes VI to VIII.

Appointment on the posts of Assistant Master and Assistant Mistress in Senior Basic Schools is required to be made by way of promotion under Rule 18 of the 1981 Rules. However, proviso to Rule 5 clarifies that if suitable candidates are not available for promotion as Assistant Master of Senior Basic Schools or Assistant Mistress of Senior Basic Schools, appointment may be made by direct recruitment in the manner laid down in Rule 15.

Rule 8 lays down the essential qualification prescribed for appointment on the post referred to in Rule 5 of 1981 Rules. For our purpose sub-rule (4) of Rule 8 is relevant, which reads as follows:

"Rule 8(4). The essential qualification of candidates for appointment to the posts referred to in clause (a) and sub-clauses (iii) and (iv) of clause (b) of Rule 5 for teaching Urdu Language shall be as follows:

(i) Bachelor's Degree from a University established by Law in India or a Degree recognised 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.

(ii) 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 for teaching Urdu or any other training qualification recongised by the Government as equivalent thereto."

From the rules, it is apparently clear that the vacancies on the post of Assistant Masters/Assistant Mistresses of Senior Basic Schools has to be made by way of promotion at the first instance in accordance with Rule 18 and it is only when that suitable candidates are not found available for such promotion that direct recruitment under Rule 15 can be resorted to. For ready reference Rules 15 and 18 read as follows:

"15. Notification of vacancies and preparation of list of eligible candidates for certain posts of Assistant Masters/Mistresses of Senior Basic Schools.-(1) In respect of an appointment by direct recruitment to the post of Assistant Master or Assistant Mistress of Senior Basic Schools under the proviso to Rule 5(b) the appointing authority shall notify every vacancy to the Employment Exchange and also in at least one newspaper having adequate circulation in the locality.

(2) The appointing authority shall scrutinise the applications received in pursuance of the advertisement and the names of candidates received from the Employment Exchange in pursuance of the vacancy notified under sub-rule (1) and shall thereafter, prepare a list of such persons as appear to possess the prescribed educational qualifications and be eligible for appointment. The order in which name of eligible persons shall appear in the list shall be as prescribed under sub-rule (4) of Rule 14.

(3) The list prepared under sub-rule (2) shall be forwarded by the appointing authority of the Selection Committee constituted under Rule 16.

18. Procedure for recruitment by promotion.- (1) Recruitment by promotion to the posts referred to in clause (b) of Rule 5 shall be made on the basis of seniority subject to rejection of unfit through the Selection Committee constituted under Rule 16.

(2) The appointing authority shall prepare an eligibility list of candidates in order of seniority and place it before the Selection Committee along with their character rolls and such other records pertaining to them as may be considered proper.

(3) The Selection Committee shall consider the cases of the candidates on the basis of the records referred to in sub-rule (2).

(4) The Selection Committee shall prepare a list of selected candidates in order of seniority as disclosed from the eligibility list referred to in sub-rule (2) and forward the same to the appointing authority."

With regard to teachers to be appointed for teaching language subject i. e. Hindi and Urdu, Rule 17 provides that the candidates, included in the list prepared under Rule 14(6) or Rule 15 will be required to write an essay on a current topic in the language in respect of which the post is to be filled. A candidate who obtains less than fifty marks in the written examination shall be disqualified. Rule 17 (1) and (2) relevant for all purposes reads as follows:

"17. Procedure for direct recruitment to a post for teaching a language.- (1) The Selection Committee shall require the candidates mentioned in the lists referred to in sub-rule (6) of Rule 14 sub-rule (2) of Rule 15, as the case may be, to appear at a written examination which shall be of one hundred marks.

(2) In the written examination under sub-rule (1), the candidates will be required to write an essay on a current topic in the language in respect of which the post is to be filled. A candidate who obtains less than fifty marks in the written examination shall be disqualified for appointment."

From the scheme of the Rules of 1981, it is apparently clear that appointment as Language Teacher (Urdu in the facts of the present case) in Senior Basic Schools is required to be made at the first instance by way of promotion under Rule 18. In case requisite number of teachers are not found available for such promotion, direct recruitment with reference to Rule 15 read with Rule 17 can be resorted to.

The Rules of 1981 do not contemplate appointment of any teacher at any level of the school for teaching other subjects through the medium of Urdu. This Court may record that neither the Advocate General nor the counsel for the Basic Education Board could refer to any decision of the Board to impart education in the institutions established by it through the medium of Urdu. This Court may further record that in all the Basic Institutions established by the Board education is being imparted in the other subjects through the medium of Hindi only. Despite specific query being made to the respondents, no evidence could be produced before this Court, which could establish that education is being imparted in any institution established by the Board under Basic Education Act through the medium of Urdu nor any examination paper of any class could be produced by the State for establishing teaching of other subjects through the medium of Urdu Language.

From the syllabus enclosed as Annexure-CA-1 and CA-2 to the affidavit of Sri Banwari Lal Gautam, it is established beyond doubt that Urdu is only being taught as a language subject in Senior Basic Schools i. e. Classes VI to VIII. It may be recorded that Urdu is not even being taught as a language in Classes I to V or at the Nursery level to the students nor it is included in the syllabus.

In this legal and factual background, the note put up before the State Government by the Secretary, Secondary Education, if examined, would establish that the Secretary of the Department in his note dated 9th February, 2005, has not stated anywhere that requisite number of persons for teaching Urdu language in Senior Basic Schools (which is required to be filled by way of promotion) are not available. On the contrary without referring to the statutory rules applicable for appointment of Assistant Teachers in Senior Basic Schools for Urdu language subject, it was suggested that there is shortage of 3,000 teachers for imparting education in the subject of Urdu as a result whereof it is necessary that special two years B.T.C. programe be initiated and for the said purpose relaxation in the prescribed qualification of graduation with Urdu as per Rule 4 of 1981 rules was suggested.

Thus the sole purpose of the aforesaid note put up by the Secretary was that the essential qualification of graduation with Urdu be relaxed and in its place graduate candidates, having Urdu as one of the subjects in High School and Intermediate Examination or equivalent thereto may be permitted to undergo the Special B.T.C. Training for appointment as teachers in Basic Schools (which as already noticed above would mean Senior Basic School only) for imparting education in the language of Urdu. The aforesaid note specifically refers to the teachers to be appointed for imparting education in the language of Urdu, which is one of the language subject in Senior Basic Schools only.

It is with reference to the note so put up by the Secretary of the Basic Education, the Finance Department of the State has granted its concurrence in the background that teachers may be appointed for teaching the language of Urdu and for the said purpose Special B.T.C. (Urdu) Training Course be started and the candidates selected be paid stipend during the period of training.

This Court may record that unless and until an exercise was under taken by the authority concerned to fill up the vacancies existing on the posts of Assistant Masters and Assistant Mistresses (Urdu) by way of promotion, the process of direct recruitment or any recruitment for admission to Special B.T.C. Course could not have been started, inasmuch as direct recruitment can be resorted to only if the requisite number of vacancies can not be filled by way of promotion under Rule 18.

It may also be recorded that absolutely no material was placed before the Court as to in which institutions teachers, for imparting education in Urdu language, were not available, where the students have opted for Urdu as a language subject but such education could not be imparted for want of Urdu language teacher.

The position becomes worst on examination of the Government Orders dated 18th March, 2006 and dated 15th September, 2006. The Government Order, which has been reproduced herein above, clearly demonstrate that the Secretary of the Department has tried to mislead the authorities concerned by falsely suggesting that there was requirements of 10,000 (5000 +5000) additional Urdu Teachers for appointment in Basic Schools established by the Basic Shiksha Parishad U.P., Allahabad.

It is admitted on record that Urdu is not being taught as a language in Nursery Schools and in Junior Basic Schools . There can be no requirements of Urdu Teachers in these two categories of institutions. The only category of institutions where Urdu is being taught as language are the Senior Basic Schools. There is nothing on record to establish that there was a requirement of any additional 10,000 teachers for imparting education of Urdu language to the students of these institutions even the number of such Senior Basic Schools has not been disclosed. Therefore, the Secretary of the Basic Education, while putting up note dated 18.03.2006 and dated 15.09.2006 has misled the authorities and has given only half information while seeking conversion of 10,000 (Ten Thousand) posts from other subjects to that of Urdu teachers.

The Secretary was aware that the requirement projected by him of 10,000 additional teachers, as per note date 18.03.2006 and dated 15.09.2006, was based on incorrect facts, he has therefore made an attempt to justify the wrong information supplied by him, by suggesting that a decision has been taken to impart education in other subjects through the medium of Urdu, and for this stand the Secretary, the Director, State Council of Educational Research and Training, U.P. Lucknow by means of her supplementary affidavit, sworn on 22nd November, 2006, in paragraph 4 stated before this Court that Assistant Teachers with proficiency in Urdu are the persons who will teach other subjects through Urdu medium to students of Classes I to VIII, who belong to linguistic minority and their mother tongue is Urdu.

This Court is sorry to record that the statement so made is false and misleading, the reasons for the same may be summarized as follows:

(a) At no point of time the Basic Education Department has taken any decision with reference to Section 4 of the Basic Education Act for instructions in Basic Schools (Nursery) (Classes I to V) and (VI to VIII) through the medium of Urdu language.

(b) Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 contemplate appointment of language teachers for teaching Urdu as a subject only and not of teachers for teaching other subjects through the medium of Urdu.

(c) From the syllabus, as brought on record before this Court in respect of the Nursery Schools and Junior Basic Schools, it is established that the Urdu is not even being taught as a language at that level. This Court fail to understand that when Urdu is not even being taught as a language, how could other subjects be taught through the medium of Urdu.

(d) So far as the Senior Basic Schools (where education from classes VI to VIII is being imparted) are concerned, Urdu language is only one of the subjects and for appointment of Urdu Language Teacher separate qualifications as per Rule 8(4) read with Rule 17, have been provided for.

Reference may also be had to the provisions of The Uttar Pradesh Board of Madarsa Education Act, 2004, which provides a complete code including the constitution of the Board for regulating the power to regulate the courses of instructions text books etc. from classes Tahtania to the degree of Fazil, as well as to prescribe the books for instruction of course for Arbi, Urdu and Farsi up to High School and Intermediate classes in accordance with the course determined by the Board of High School and Intermediate. Further the recognized Arbi Tatha Farsi Madarsas are regulated under the provisions of the Uttar Pradesh Ashaskeeya Arbi Tatha Farsi Madarson Ki Manyata Niyamawali, 1987. These provisions take care of institutions where teaching is required through the medium of Urdu language.

The Court may now take note of the amendments, which have been made vide Uttar Pradesh Basic Education (Teachers) Service (Eleventh Amendment) Rules, 2006. It is recorded that absolutely no amendment has been made in Rule 5 of the 1981 Rules, which lays down the sources of recruitment and therefore the mode and manner of appointment of Urdu Language Teacher in Senior Basic Schools continues to be same even after amendment. The State respondents, without having regard to the provisions of the aforesaid rules, have hurriedly made amendments in Rule 8 by adding Clause 5 (vide Amendment Rules of 2006), which reads as follows:

"8(5) The essential qualifications of candidates having proficiency in Urdu for appointment to the posts referred to in sub-clause (ii) of clause(a) of rule-5 for teaching in Urdu medium shall be as follows:

(i) A Bachelor's Degree from a University established by Law in India or a Degree recognised by the Government as equivalent thereto. The qualifications for proficiency in Urdu will be such as may be prescribed from time to time by the Government.

(ii) Training Qualification of two years B.T.C. Urdu special training course."

From a bare reading of the aforesaid clause it is apparently clear that it applies only in respect of Assistant Masters/Assistant Mistresses to be appointed by direct recruitment in Junior Basic Schools (covered by Rule 5 (a)(ii) of the 1981 Rules.

As already noticed above, Urdu is not being taught as a subject in Nursery Schools or in Junior Basic Schools i. e. Classes I to V, how can education in other subjects be imparted through the medium of Urdu in such Junior Basic Schools. It appears that there has been complete non-application of mind to the Rules of 1981 while notifying the amended Rules of 2006. The amendments have been suggested with the sole purpose of justifying the academic qualifications mentioned in the advertisement. The Basic Education Board has not taken any decision till date to provide Urdu as the medium of instructions in respect of subjects to be taught in Nursery/Junior Basic Schools nor any syllabi in that respect has been prepared or is available on records. As a matter of fact teaching through the medium of Urdu is not even contemplated by Basic Education Board in the institutions established by it till date.

Therefore, it is established that in no institution established by the Board other subjects are being taught through the medium of Urdu. Therefore, the conversion of 10,000 (Ten Thousand) posts of other subjects to those of Assistant Teachers with proficiency in Urdu, as has been directed under the order of the State Government, is based on incorrect facts to the extent of being arbitrary and uncalled for. This Court, therefore, holds that there is no requirement of 10,000 additional teachers for imparting education through the medium of Urdu in Basic Schools established by the Board. The stand taken by the Secretary of the Basic Education is patently false and misleading.

The Advocate General justifies the decision of the conversion of the posts on the plea that in accordance to national policy of educating children in their mother tongue it is necessary to have teachers with proficiency in Urdu to teach other subjects in the Urdu language i. e. mother tongue of large number of students studying in various Basic Schools of the Board.

However, laudable the object of the policy decision of the State may be for conversion of the 10,000 posts to that of teachers with proficiency in Urdu, such policy decision has to be in conformity with the statutory rules, which regulate the appointment of teachers in Basic Schools and not in derogation thereof. The Hon'ble Supreme Court in its recent judgment in the case of State of Orrisa & Ors. vs. Prasana Kumar Sahoo; 2007 AIR SCW 4604, in paragraph 14 has held as follows:

"14. Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative act or the proviso appended to Article 309 of the Constitution of India. A purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules for less the constitutional provisions."

This Court may now examine the most important aspect of the matter i.e. as to whether the Special B.T.C. Course (Urdu), as advertised, could in fact be started by the State authorities in District Institute of Education and Training established in all the districts of the State.

It is admitted to the parties that under Section 14/15 of the National Council for Teacher Education Act, 1993 no institution can offer a course of training in teachers education until it has been granted such recognition by the National Council for Teacher Education. Section 16 of the Act categorically provides that notwithstanding anything contained in any other law for the time being in force, no examining body shall, on or after the appointed day granted affiliation, or hold examination for a course of teachers training conducted by a recognised institution, unless the institution concerned has obtained recognition from the Regional Committee concerned, under Section 14 or permission for a course or training under Section 15.

This Court, therefore, required the Advocate General as well as Secretary of the Basic Education to explain as to whether the Special B.T.C. Training Course (Urdu) has been granted recognition/approval under Sections 14/15 of the National Council for Teacher Education Act by the Regional Committee or not.

Reply to the query made by the Court has been answered by way of affidavit filed by the Secretary of the Department and in paragraphs 3, 4, 5 and 6 it has been stated as follows:

"3. That the Hon'ble Court by order dated 20.2.2007 directed the State Government for furnishing the following information:

(a) Copy of the Course approved by the National Council for Teacher Education Act (for short N.C.T.C.) for Special Basic Training Course of two years. The contents of the course may also be disclosed.

(b) Copy of the letter forwarded by the Secretary to the National Council for Teacher Education order dated 16.2.2005.

(c) The academic qualification possessed by the teachers of present working in various District Institute of Education Training in the all districts of State of U.P. with specific reference of knowledge of Urdu possessed by such teachers."

4. That so far as the Ist query made by this Hon'ble Court by order dated 20.2.2007 is concerned, it is necessary to clarify here that there is no course of Special BTC Training for two years. In fact the Special BTC Training Course of 6 months training was introduced by the State Government for the first time in the year 1998 and secondly in the year 2004. The duration of Regular BTC Training Course is of two years and similarly the duration of Special BTC Urdu Training Course is also of two years. So far as approval of course for Special BTC two years Training is concerned, it is necessary to submit here that the contents of BTC Training Course (Regular) and Special BTC two years Urdu training Course is the same. The contents of Two years Special Urdu BTC Training Course is just a Urdu transcript of that of Regular BTC Training Course. Photocopies of both course and a copy of comparative status of the both the contents are being annexed as Annexure No. S.A.-1 & 2 to this affidavit.

5. That so far as the IInd query made by this Hon'ble Court by order dated 20.2.2007 relating to letter of Secretary, Basic Education to the NCTE is concerned, a copy of the letter dated 16.2.2005 sent by the Secretary, Basic Education U.P. to the NCTE as well as letter issued by NCTE dated 25.5.2006 are being annexure as Annexure No. S.A.-3 & 3-A to this affidavit.

6. That so far as the IIIrd query made by this Hon'ble Court by order dated 20.2.2007 is concerned, it is submitted that the District Institutes of Education and Training in the State of U.P. have been established with the object to organize pre-service (BTC) and in-service course for elementary school teachers, and they have sufficiently, qualified staff to conduct these course. The purpose of training is to develop the pedagogical skills among the trainees. The efficiency of the DIET staff is regularly streamlined through various orientations and factually development courses. The BTC Urdu Special Training Course is same as the BTC Course being conducted since long as such training pedagogy for the two courses are the same. That is why the National Council for Teacher Education has identified the BTC Urdu Course as a part of the BTC Regular Course. The DIETs in the State of U.P. have the competent staff to provide the training of the BTC Urdu Training Course. However as per direction issued by this Hon'ble Court dated 20.2.2007 infuriation were sought from all the DIETS with respect to the teachers having knowledge of Urdu. A detail chart was prepared after information received from the different DIETs in relation to the teachers having knowledge of Urdu. A copy of the said chart is being annexed as Annexure No. S.A.-4 to this affidavit.

Counsel for private respondents has only adopted arguments made on behalf of the State respondent, no submission in addition there to have been made.

The Advocate General, with reference to the affidavit filed by the Secretary, Basic Education U.P., Lucknow dated 11.01.2007 (relevant portion whereof has been quoted above), stated that B.T.C. Training Course (Regular) which is to be offered by the District Institute of Education and Training, and Special B.T.C. Two Years Urdu Training Course now to be introduced are one and the same. The only change pointed out is that Urdu transcript of the Regular B.T.C. Training Course is to be used as the contents of two years Special B.T.C. Training Course Urdu, Therefore no separate approval under Sections 14/15 of the National Council for Teacher Education Act is required. Reliance has also been placed on the letter of the Secretary dated 16th February, 2006 addressed to the National Council for Teacher Education and reply received in that regard dated 25.05.2006.

Under order of this Court dated 12.03.2007 Sri K.S. Kushwaha Standing Counsel was directed to produce the entire records pertaining to the correspondence in respect of the Special B.T.C. Course (Urdu) entered into between the Basic Education Department of the State of U.P. and National Council for Teacher Education, Northern Region, Jaipur. The records have been produced before this Court and have been examined. The records present a very disturbing picture. Despite opportunity none of the respondents made any attempt to explain the correspondence which exists on record.

The Court may record that the Highest Constitutional Authority representing the State namely Advocate General as well as the Secretary of Basic Education have referred to only half facts in their oral submissions as well as in their affidavit respectively. In view of the Paragraph 4 to 6 of the affidavit of the Secretary, quoted above, an argument was vehemently made before the Court that National Council for Teacher Education has informed that no recognition in respect of Special B.T.C. Course (Urdu) is required.

The original records, disclose facts, which are in complete divergence to the stand so taken, as is clear from the following:

(a) The Secretary Basic Education forwarded a letter to the Regional Director, National Council for Teacher Education, Northern Region, Jaipur dated 16th February, 2005 stating therein that the State Government has taken a decision to admit 3000 (Three Thousand) students for B.T.C. Urdu Two Years Special Training. Such training was earlier available in District Institute of Education and Training at Varanasi, Meerut, Lucknow and Agra, which have since been closed since 1997-98. Because of this a difficulty has arisen qua appointment of Urdu Teachers in Basic institutions. Therefore it was requested that approval be granted to the B.T.C. Urdu Two Years Special Training Course. This letter does not refer to any particular institution or course through which such training was to be imparted. It is worthwhile to reproduce the letter, which reads as follows:

"izs"kd

ts0,l0 nhid

lfpo]

mRrj izns'k 'kklu A

lsok esa]

{ks=h; funs'kd]

mRrj {ks=h; lfefr

jk"Vz~h; v/;kid f'k{kk ifj"kn

t;iqj A

f'k{kk vuqHkkx&5 y[kum% fnukad 16 Qjojh] 2005

fo"k;% ch0Vh0lh0 (mnwZ) ds f}&o"khZ; fo'ks"k izf'k{k.k gsrq vuqefr iznku djus ds laca/k esa A

egksn;]

mRrj izns'k csfld f'k{kk ifj"kn }kjk lapkfyr izkFkfed fo|ky;ksa esa lgk;d v/;kidksa ds in cMh la[;k esa fjDr gksus ,oa orZeku esa mnwZ fo"k; dh izoh.krk j[kus okys lgk;d v/;kidksa dh U;urkdks n`f"Vxr j[krs gq, jkT; ljdkj }kjk 3000 Lukrd ;ksX;rk/kkjh vH;fFkZ;ksa dh ch0Vh0lh0 mnwZ ds f}&o"khZ; fo'ks"k ijh{k.k gsrq p;fur fd;s tkus dk fu.kZ; fy;k x;k gS A ;gka ;g mYys[kuh; gS fd okjk.klh] esjB] y[kum ,oa vkxjk ds jktdh; nh{kk fo|ky;ksa esa mnwZ ch0Vh0lh0 ds izf'k{k.k gsrq O;oLFkk Fkh] tks dkykUrj esa 1997&98 esa lekIr gks x;h ftlds QyLo:i mnwZ f'k{kdksa ds in Hkjs tkus esa dfBukbZ gks x;h gS A vr% mDr dk laKku ysrs gq, jkT; ljdkj }kjk mDr fu.kZ; fy;k x;k gS A

mDr fu.kZ; ds vuqlkj jkT; 'kSf'kd vuqla/kku ,oa izf'k{k.k ifj"kn }kjk izns'k ds fofHkUu lekpkj i=ksa esa O;kid izpkj izlkj ds ek/;e ls Lukrd mRrh.kZ ,sls vH;fFkZ;ksa ls vkosnu i= ekaxs tk;saxs ftUgksaus gkbZLdwy ,oa b.Vj Lrj ij mnwZ fo"k; ds ijh{kk mRrh.kZ dh gks A mnwZ izoh.krk ds laca/k esa ,sls vH;fFkZ;ksa ls Hkh vkosnu i= izkIr fd;s tk;saxs ftUgksaus ek/;fed f'k{kk ifj"kn vFkok jkT; ljdkj }kjk led{k ?kksf"kr izoh.krk ls mRrh.kZ dh gks A miyC/k fjfDr;ksa ds lkis{k 50 izfr'kr efgykvksa ,oa 50 izfr'kr iq:"kksa dk p;u] vH;fFkZ;ksa ds gkbZLdwy] b.VjehfM,V ,oa Lukrd izkIrkad izfr'kr ds ;ksx ds vk/kkj ij vkj{k.k laca/kh O;oLFkkvksa dk vuqikyu lqfuf'pr djrs gq, jkT; Lrjh; Js"Brk lwph ds vk/kkj ij fd;k tk;sxk A vH;fFkZ;ksa }kjk nks o"khZ; izf'k{k.k dk;Zdze iw.kZ gksus ds mijkUr budh ijh{kk vk;ksftr dh tk,xh rFkk ijh{kk esa lQy gksus okys vH;fFkZ;ksa dks izns'k ds csfld f'k{kk ifj"knh; izkFkfed fo|ky;ksa esa lgk;d v/;kid ds :i esa fu;qDr fd;k tk;sxk A

vr% bl laca/k esa eq>s ;g dgus dk funsZ'k gqvk gS fd d`i;k mDr fu.kZ; dks laKku esa j[krs gq, ch0Vh0lh0 mnwZ ds f}&o"khZ; fo'ks"k izf'k{k.k dh vuqefr iznku djus dk d"V djsa] ftlls fd csfld f'k{kk ifj"kn }kjk lapkfyr mnwZ f'k{k.k gsrq leqfpr Hkonh;]

(ts0,l0 nhid)

lfpo A""

The letter was followed by a reminder dated 12th April, 2005 forwarded by the Secretary to the Regional Director, National Council for Teacher Education. In the subsequent letter also absolutely no mention was made about the institutions or to the contents of the course qua Special B.T.C. Urdu Training to be imparted.

On 12th May, 2005 the Regional Director of National Council for Teacher Education, Jaipur forwarded a letter to the Secretary by name, categorically stating that the proposal submitted was considered in the 90th meeting of the Northern Regional Committee held on 22nd -23rd April, 2005 and it was decided to seek clarification with regards to the objective of the programme namely whether it is meant to prepare teachers to teach Urdu or to prepare teacher to teach through Urdu medium. Details of the proposed course including the availability of instruction material be supplied. It was further informed that the Committee has forwarded a communication to National Council for Teacher Education Head Quarters regarding the above issue as also for the clarification qua the receipt of applications for recognition after 31st December, 2004 and procedure to be followed for processing thereof. For ready reference letter dated 12th May, 2005 reads as follows:

"To,

Sh. J.S. Deepak,

Secretary (Basic Education),

Govt. of UP,

Secretariat,

Lucknow (UP).

Sub: Consideration of the issue for granting permission to impart special training for two year BTC Course (Urdu) to the graduates.

Sir,

With reference to your letter no. 534(ii)/79-5-2005-12/2004 dated 16.02.2005 and no. 1911(1)79-5-2005 dated 12.04.2005, I am to inform you that the matter was considered in 90th meeting of NRC held on 22nd -23rd April, 2005, wherein it has been decided "to seek clarification with regards to the objective of the programme namely whether it is meant to prepare teachers to teach Urdu or to prepare teacher to teach through the Urdu medium and also the proposed course details including the availability of instruction material. Further, the committee also decided to issue communication to National Council for Teacher Education HQs. regarding the above issue, including the receipt of the request for consideration of recognition after 31st December, 2004 and procedure thereof for processing."

Accordingly, you are requested to kindly furnish the detailed information as desired by the Northern Regional Committee as early as possible so that the same be placed before the Committee in its next meeting.

Yours faithfully

(N.R. Murali) Regional Director"

In reply to the same, the Secretary, Basic Education U.P. vide letter dated 18th May, 2005 stated that candidates selected for B.T.C. Urdu Two Years Special Training Course would be imparted training in District Institutes of Education and Training through Hindi medium, as is being provided to any other candidates selected for B.T.C. Training (General). It was further stated that the National Council for Teacher Education has already granted approval to the curriculum in respect of the said training. The selected candidates would be imparted education in Urdu as well as in other subject and shall thereafter be appointed in the institutions situate in area where Muslims are in majority so that along with other subjects they may also be able to teach Urdu language, which is one of the optional subjects. Relevant paragraphs 3, 4 and 5 of the said letter are being reproduced:

"3& mijksDr izf'k{k.k dk;Zdze gsrq p;fur vH;fFkZ;ksa dks ch0Vh0lh0 (lkekU;) dh Hkkafr izns'k esa fLFkr ftyk f'k{kk ,oa izf'k{k.k laLFkku (Mk;V) esa fgUnh ek/;e ls f}&o"khZ; izf'k{k.k ,oa mnZw fo"k; dk fo'ks"k izf'k{k.k iznku fd;k tkuk gS A izf'k{k.k gsrq fu/kkZfjr ikB~;&dze] tks fd ,u0lh0Vh0bZ0 }kjk iwoZ vuqeksfnr gSa] dh izfr layXu gS A mDr ikB~;&dze ds mnwZ :ikUrj.k }kjk mnwZ fo'ks"k izf'k{k.k dk ikB~;&dze fodflr fd;k x;k gS] ftldh izfr layXu gS A p;fur vH;fFkZ;ksa dks mnwZ fo"k; ds vfrfjDr vU; fo"k;ksa dk Hkh izf'k{k.k fn;k tk;sxk A vYila[;d ckgqY; {ks=ksa esa fLFkr fo|ky;ksa esa mnwZ fo"k; f'k{kk gsrq fodYi ds :i esa j[k x;k gS] vr% izf'k{k.k dk mn~ns'; p;fur vH;fFkZ;ksa esa vU; fo"k;ksa ds lkFk mnwZ dks ,d vfrfjDr fo"k; ds :i esa i4& rRdze esa ;g Hkh mYys[k djuk gS fd mijksDrkuqlkj izf'k{k.k gsrq p;fur vH;fFkZ;ksa dks Mk;V esa iowZ ls miyC/k lhVksa ds vUrxZr gh izf'k{k.k iznku fd;k tkuk gS A f}&o"khZ; ch0Vh0lh0 (mnwZ) ds fo'ks"k izf'k{k.k ds mijkUr Hkkjr ljdkj }kjk fpfUgr izns'k ds vYila[;d ckgqY; tuinksa (lwph layXu) esa fLFkfr csfld f'k{kk ifj"kn }kjk lapkfyr fo|ky;ksa o ;Fkk&vko';drk izns'k ds vU; tuinksa esa fLFkr fo|ky;ksa esa p;fur vH;fFkZ;ksa dks lgk;d v/;kid ds :I esa fu;qDr fd;k tk;sxk] ftlls fd mnwZ f'k{k.k dh leqfpr O;oLFkk dh tk lds A

5& d`i;k mijksDrkuqlkj fLFkfr ls voxr djkrs gq, vuqjks/k gS fd ,u0lh0Vh0bZ0 dh vkxkeh cSBd esa iz'uxr izdj.k ij fopkj djrs gq, ch0Vh0lh0 (mnwZ) ds f}&o"khZ; fo'ks"k izf'k{k.k gsrq okafNr vuqefr ;Fkk'kh?kz iznku djus dk d"V djsa] rkfd vxzsrj dk;Zokgh lle; izkjEHk dh tk lds A "

It is with reference to this letter of the Secretary, the Regional Director, National Council for Teacher Education vide letter dated 25.05.2006 informed that since the State of U.P. has not asked for grant of additional intake of students in two years B.T.C. Training Course recognized by the National Council nor approval for any new course is being asked for, and further since the B.T.C. Training Two Years Course already has Sanskrit and Urdu as one of the subject papers, therefore, no decision is required on the application of the State dated 18.05.2005. The letter dated 25.05.2005 of the Regional Director, National Council for Teacher Education is quoted below:

"To,

Sh. J.S. Deepak,

Secretary (Basic Education),

Govt. of UP,

Secretariat,

Lucknow (UP)

Sub: Consideration of the issue for granting permission to impart special training for two year BTC Course (Urdu) to the graduates in the State of UP.

Sir,

With reference to your letter no. 2538/79-5-2005-12/04 dated 18.05.2005 in connection with the above cited subject. The matter was placed before NRC in its 91st Meeting held on 20th-21st May 2005, wherein the Committee after careful consideration of all aspects including your reply noted that "the State of Uttar Pradesh has not asked for grant of additional intake in its two year BTC Course recognized by the National Council for Teacher Education, Further the BTC Course already has Sanskrit and Urdu as subject papers. Therefore, there is no new decision required on this application" dated 18.05.2005."

On receipt of this letter, the Special Secretary made a note to the Director, State Council of Educational Research and Training U.P., Lucknow to the effect that no permission of National Council for Teacher Education is required for imparting two years B.T.C. Urdu Special Training Course. The letter of Special Secretary dated 03rd June, 2005 reads as follows:

"vks0 ,u0 feJ v0'kk0i0la0&2538&79&5&2005

fo'ks"k lfpo A mRrj izns'k 'kklu

f'k{kk vuqHkkx&5

fiz; egksn;k]

ch0Vh0lh0 AmnwZA ds f}o"khZ; fo'ks"k izf'k{k.k gsrq jk"V~zh; v/;kid f'k{kk ifj"kn A,u0lh0Vh0bZ0A ls vuqeU;rk izkIr fd;s tkus fo"k;d vius i= la[;k&jk0'kS0@2777@2005&06 fnukad 17 ebZ] 2005 dk d`i;k laKku ysus dk d"V djsa A

2& mDr lanHkZ esa eq>ls ;g voxr djkus dh vis{kk dh x;h gS fd mRrj {ks=h; lfefrA,u0lh0Vh0bZ0A dh xr fnukad 20&21 ebZ] 2005 dks lEiUu gqbZ 91oha cSBd esa iz'uxr ekeys esa lE;d fopkjksijkUr ;g ik;k x;k fd mDr izf'k{k.k dk;Zdze gsrq ,u0lh0Vh0bZ0 ls vuqeU;rk dh vko';drk ugha gS A {ks=h; funs'kd jk"V~zh; v/;kid f'k{kk ifj"kn] t;iqj ds rn~fo"k;d i= fnukad 25&5&2005 dh izkIr ,rn~}kjk layXu dj vko';d dk;Zokgh gsrq izsf"kr gS A

d`i;k mDr ls voxr gksuk pkgsa A

llnHkko]

layXud&mijksDrkuqlkj A Hkonh;]

lqJh vpyk [kUuk Avks0,u0 feJA

funs'kd] jkT; 'kSf{kd vuqla/kku ,oa

izf'k{k.k ifj"kn] m0iz0 fu'kkrxat]

y[kum A

From the correspondence, noticed herein above by this Court in detail, it is apparently clear that the Secretary Basic Education has misled the National Council for Teacher Education or else he is trying to mislead the Hon'ble High Court. From the stand taken by Secretary before the National Council for Teacher Education, as reflected from his letter referred to above, it was apparent that Special B.T.C. Urdu two years training course was to be through the medium of Hindi as per the course approved for District Educational and Training Institutes by National Council for Teacher Education and that the teachers so trained would be appointed to teach other subjects along with Urdu language which is an optional subject. It is with reference to this letter of the Secretary only that the National Council for Teacher Education had refused to entertain the application dated 18th May, 2005 of the State, after recording that no additional intake is being asked for and that Urdu and Sanskrit are already included in the course recognized by the National Council for Teacher Education.

At no point of time the National Council for Teacher Education was informed that special B.T.C. Course Urdu was to prepare teacher for teaching other subjects through the medium of Urdu or that the teachers to be appointed after completing the said training would be required to teach other subjects through the medium of Urdu.

The distinction between a teacher trained to teach other subjects along with the subject of Urdu Language viz-a-viz the teacher trained to teach subjects through Urdu medium needs no elucidation. Two belongs to two different class and therefore their training for being qualified/trained as teacher in their respective category has necessarily to be distinct and based of different curriculum and through institutions duly recognized for the purpose under Section 14/15 of the National Council for Teacher Education Act.

From the letter of the Secretary of the State it is further apparent that it was only in respect of 3000 posts of Urdu (Language) Teachers that permission for two years Special B.T.C. Training Course Urdu was sought for, which was necessarily in respect of teachers who would impart education in the subject of Urdu language, which was an optional subject only. At no point of time any approval was applied for by the State in respect of training of teachers for imparting education in other subjects through the medium of Urdu nor any course in respect of such training was ever forwarded to the National Council for Teacher Education for approval.

The National Council for Teacher Education vide its letter dated 12.05.2005 made a specific query from the Secretary Basic Education of the State as to whether two years Special B.T.C. Training Course Urdu was intended for appointment of teachers to teach other subjects through the medium of Urdu or for appointment of teachers for imparting education in Urdu Language. The reply given by the Secretary to this query is categorical namely that the Special Training Course asked for is for training of teachers for imparting education in other subjects along with the optional subject of Urdu language.

The supremacy of the National Council for Teacher Education Act over any other Act of the State or its policy decisions is well established. Reference in that regard may be had to the judgment of the Hon'ble Supreme Court in the case of State of Maharastra vs. Sant Dhyaneshwar Shikshan Shastra Mahavidyalaya, reported in JT 2006 (4) SC 201.

At no point of time the State or its authorities informed the National Council for Teacher Education that two years Special B.T.C. Training Course was intended for training teachers for imparting education in other subjects through the medium of Urdu.

This Court may record that deliberately the Secretary had not referred to the letter of the National Council for Teacher Education dated 12th May, 2005 as well as reply submitted by him on 18th May, 2005 in any of his affidavits before this Court nor these documents were referred to at any time when the matter was being heard by this Court. It was obligatory upon the Secretary to furnish full and complete facts, as are available on record, to the Court. He is not expected to conceal facts and documents, having material bearing on the controversy, from the Court only with any intention to protect the actions taken by the officers of the State.

In view of the aforesaid, this Court record its following conclusion:

(a) The District Institutes of Education and Training /State has no recognition/approval from National Council for Teacher Education under Section 14/15 of the National Council for Teacher Education Act for the Special B.T.C. Training Course Urdu and therefore they cannot conduct any teachers training in respect of this course under law.

(b) That there is no requirement of Urdu Teachers beyond the sanctioned strength of teachers to be appointed as Language Teachers for the subject of Urdu in Senior Basic Schools.

(c) Urdu is not one of the language subject included in the syllabi of Nursery Schools and Junior Basic Schools and no teachers, for imparting education in Urdu, is required in such institutions.

(d) The Basic Education Board has not taken any decision to impart education in the institutions established by it through the medium of Urdu and therefore there cannot be a requirement of teachers for the purpose of teaching other subjects through the medium of Urdu in any of the institutions established by the Basic Shiksha Parishad U.P., Allahabad.

(e) Appointment on the posts of Assistant Teachers in Senior Basic Schools (Classes VI to VIII) for teaching Urdu language has to be made at the first instance by way of promotion in accordance with Rule 18 of Uttar Pradesh Basic Education (Teachers) Service Rules, 1981, and if there after any post still remains vacant, the State can resort to direct recruitment.

(f) Amendment made to Rule 18 (5) of Uttar Pradesh Basic Education (Teachers) Service Rules, 1981, in so far as it pertains to appointment of Assistant Teachers in Basic Schools for teaching other subjects through the medium of Urdu is of no legal consequence, inasmuch as no teacher for the purpose is required in Nursery Schools or Junior Basic Schools established by the Basic Shiksha Parishad U.P., Allahabad as is apparent from the syllabi enclosed along with counter affidavit filed on behalf of the State respondent. The qualifications for appointment of teaches for imparting education in the subject of Urdu Language for Senior Basic Schools even after amendment continues to be the same.

In view of the aforesaid, the Government Orders dated 16.02.2005, dated 18.03.2006 and dated 15.09.2006 are declared to be illegal and inoperative. Accordingly, the advertisements published in pursuance there of are also quashed. The State Government has not been granted permission to start Special B.T.C. Training Course Urdu by the National Council for Teacher Education till date in accordance Sections 14/15 of the National Council for Teacher Education Act and therefore no training in Special B.T.C. Training Course Urdu can be imparted by the District Institute of Education and Training for preparing teachers for imparting education in other subjects through the medium of Urdu. Admission granted in respect of the said course are illegal and the District Institute of Education and Training cannot be permitted to provide any further training to the students so admitted nor any examinations can be held for the course.

Since this Court has come to a conclusion that the entire exercise undertaken by the State in respect of the advertisement of Special B.T.C. Training Course Urdu is illegal and contrary to the statutory rules, no petitioner can be granted any relief for admission to the said course. It is not necessary for the Court to enter into the merits of the other contention raised on behalf of the petitioners, in so far as they pertain to the qualifications fixed for admission to the Special B.T.C. Training Course Urdu, nor the Court is required to adjudicate upon the merit of the claims set up by the petitioners for appointment as Assistant Teachers (Urdu) on the basis of the qualifications claimed by them, inasmuch as appointment as Language Teachers in the subject of Urdu in Senior Basic Schools is required at the first instance to be made by promotion under Rule 18 and if some vacancies still remain vacant, that process of direct recruitment can be resorted to and at that stage petitioners would be at liberty to apply and plead a case for their selection. All the writ petitions are disposed of accordingly.

Dt/-14.09.2007

Pkb/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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