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SANJAY KUMAR TYAGI versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Sanjay Kumar Tyagi v. State Of U.P. & Others - SPECIAL APPEAL No. 815 of 2000 [2004] RD-AH 1798 (23 December 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

Reserved

Special Appeal No. 815 of 2000

Sanjay Kumar Tyagi Vs. State of U.P. and others

~~~~~

Hon. Dr. B.S. Chauhan, J.

Hon. Dilip Gupta, J.

(Delivered by Hon. Dilip Gupta, J.)

This Special Appeal has been filed against the judgment and order dated 7.12.2000 of a learned Judge of this Court in Writ Petition No. 23192 1998 by which the writ petition was allowed and the approval granted by the District Basic Education Officer, Meerut to the appointment of Sanjay Kumar Tyagi, the appellant in the present Special Appeal was quashed and a direction was issued to hold a fresh selection for appointment to the post of Headmaster in the Adarsh Janta Junior High School, Krishna Nagar, Ganga Khadar,  Hastinapur,  Meerut (hereinafter referred to as ''the Junior High School') in accordance with the provisions of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as ''the 1978 Rules'). The sole question that arose for consideration in the writ petition was whether a teacher possessing the B.Ed. certificate could be considered eligible for appointment to the post of Headmaster of a recognised Junior High School under the provisions of Rule 4(2) (b) of the 1978 Rules.

It is not in dispute that the Junior High School is recognised and aided though managed by a private Managing Committee and that the conditions of service of teachers are governed by the 1978 Rules. The recommendations of the Selection Committee in favour of the appellant for appointment to the post of Headmaster were accepted by the Managing Committee and subsequently the Basic Shiksha Adhikari also granted approval to his appointment on 26.3.1998. A letter was thereafter issued on 27.3.1998 appointing the appellant to the post of Headmaster in the Junior High School. This appointment was challenged by another teacher of the Junior High School, namely, Dharamveer Singh who is respondent No. 4 in this Special Appeal on the ground that the appellant did not possess the requisite minimum qualification since he did not possess the Teaching Training Course recognised by the State Government or the Board as provided for in Rule 4(2)(b) of the 1978 Rules. The appellant had to his credit the B.Ed. certificate, which according to the petitioner-respondent did not satisfy the requirement. The learned Judge, after a careful analysis of the various provisions of the 1978 Rules came to the conclusion that the B.Ed. certificate possessed by the appellant was not a Teacher's Training Course recognised by the State Government or the Board and, therefore, he did not possess the minimum qualification for being considered for appointment to the post of Headmaster. The appointment order was accordingly quashed.

We have heard Sri Ashok Khare, learned Senior counsel appearing for the appellant and Sri P.R. Ganguly and Sri Sudhakar Upadhyaya, learned counsel for the respondents and have perused the materials available on record.

The State Government enacted the Uttar Pradesh `Basic Education Act, 1972 (hereinafter referred to as ''the Act'). The statement of objects and reasons, inter alia, mentions that the responsibility for primary education had so far vested with the Zila Parishads in rural areas and with Municipal Boards and Mahapalikas in urban areas. The administration of education at this level by the local bodies was not satisfactory, and it was deteriorating day by day. Hence for recognizing, reforming and expanding elementary education it became necessary for the State Government to take over its control into its own hands. It was, therefore, decided by the Government to transfer the control of primary education from the local bodies to the Uttar Pradesh Board of Basic Education (hereinafter referred to as ''the Board'). Basic education has been defined to mean education up to class VIII imparted in School other than the High Schools or Intermediate Colleges. While the constitution of the Board has been provided for in Section 3 of the Act, the functions of the Board have been enumerated in Section 4. Section 4(1) provides that it shall be the function of the Board to recognise, co-ordinate and control the imparting of basic education and teachers' training thereof in the State, to raise its standards and to co-relate it with the system of education as a whole in the State. Section 4(2) (b) provides that the Board shall have, amongst others, the power to conduct the junior high school and basic training certificate examinations and such other examinations as the State Government may from time to time by general or special order assign to it and to grant diplomas or certificates to candidates successful at such examinations. Section 19 of the Act provides that the State Government may make Rules for carrying out the purposes of the Act.

There are basically two sets of Junior High Schools in the State of U.P. One set is owned and managed by the Board and the other by privately managed recognised Junior High Schools. Separate Rules have been framed for these Junior High Schools in exercise of the powers under Section 19 of the Act. The recruitment and conditions of service of teachers in privately managed recognised Junior High Schools is governed by the 1978 Rules whereas the conditions of service of teachers in Junior High School owned and managed by the Board are governed by the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as ''the 1981 Rules'). In the instant case we are concerned with the 1978 Rules because the Junior High School in question is privately managed and is not one, which is either owned or controlled by the Board.

In order to appreciate the controversy involved in the Special Appeal it may be appropriate to refer to the relevant provisions of the 1978 Rules and the 1981 Rules.    

A ''Junior High School' has been defined under the 1978 Rules to mean an Institution other than High School or Intermediate College imparting education to boys or girls or both from Classes VI to VIII (inclusive) and a ''Recognised School' has been defined to mean any Junior High School not being an institution belonging to or wholly maintained by the Board or any local body recognised by the Board as such. The minimum qualifications are provided for in Rule 4 and are as follows:-

"4. Minimum Qualification.-(1) The minimum qualifications for the post of Assistant Teacher of a recognised school shall be Intermediate Examination of the Board of High School and Intermediate Education,  Uttar Pradesh or equivalent examination with Hindi and a teacher's training course recognised by the State Government or the Board such as Hindustani Teaching Certificate,  Junior Teaching Certificate,  Basic Teaching Certificate,  or Certificate of Training.

(2) The minimum qualifications for the appointment to the post of Headmaster of a recognised school shall be as follows:

(a) A degree from a recognised University or an equivalent examination recognised as such;

(b) A teacher's training course recognised by the State Government or the Board, such as Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate; and  

(c) Three years teaching experience in a recognised school."

Rule 5 specifically provides that no person shall be appointed as Headmaster or Assistant Teacher in substantive capacity in any recognised School unless he possesses the minimum qualifications prescribed for such post and he has been recommended for such appointment by the Selection Committee. Rule 10 lays down the procedure for selection while Rule 11 relates to appointment.

In so far as the 1981 Rules are concerned a ''Basic School' has been defined to mean a School where instructions are imparted from classes I to VIII. A ''Junior Basic School' has been defined to mean a Basic School where instructions are imparted from classes I to V while a ''Senior Basic School' means a Basic School where instructions are imparted from classes VI to VIII. A ''Nursery School', on the other hand, means a School in which children ordinarily of the age up to 6 years are taught in classes lower than class I. Rule 3 provides that the Rules shall apply to all teachers of local bodies transferred to the Board under Section 9 of the Act and to all teachers employed for the Basic and Nursery Schools established by the Board. Rule 5 contained in part III deals with the sources of recruitment and is as follows:-

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

(a)(b) (i) Mistresses of Nursery Schools (ii) Assistant Masters and Assistant Mistresses of Junior Basic Schools(i) Headmistresses of Nursery Schools(ii) Head Masters and Head                                                                                                                                                                                                                      Mistresses of Junior Basic Schools (iii) Assistant Masters of Senior Basic Schools(iv) Assistant Mistresses of Senior Basic Schools(v) Head Masters of Senior Basic Schools(vi) Head Mistresses of Senior Basic Schools By direct recruitment as provided in Rules 14 and 15;By direct recruitment as provided in Rule 14 and 15; By promotion as provided in Rule 18; By promotion as provided in Rule 18; By promotion as provided in Rule 18; By promotion as provided in Rule 18; By promotion as provided in Rule 18; By promotion as provided in 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."

Part IV of these 1981 Rules deals with qualification and the relevant portions of Rules 6 and 8 are quoted below:-

"6. Age.- A candidate for recruitment to any post referred to in clause (a) or proviso to clause (b) of Rule 5, must have attained the age of eighteen years and must not have attained the age of more than thirty-two years on the first day of July following the year in which the vacancy is notified:

Provided also that where after successful completion of a course of training prescribed for teachers of Basic Schools, a candidate could not get appointment due to non-availability of vacancy in the district, the period he has remained unappointed shall not be counted for the calculation of his age if he has not attained the age of more than fifty years on the date of appointment:

Provided also that no upper age limit shall apply in case of B.Ed./L.T./B.P.Ed./C.P.Ed. or D.P.Ed. trained candidates who have completed special B.T.C. Training course in the year 1999.

8. Academic qualifications.-(1) The essential qualifications of candidates for appointment to a post referred to in clause (a) of Rule 5 shall be as shown below against each:

Post(i) Mistress of Nursery Schools (ii) Assistant Master and Assistant              Mistress of Junior Basic Schools. Academic qualificationsCertificate of Teaching (Nursery) from a recognised Training Institution in Uttar Pradesh or any other training qualification recognised by the Government as equivalent thereto. A Bachelor's Degree from a University established by law in India or a Degree recognised by the State Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course recognised by the Government as equivalent thereto:Provided that the essential qualification for a candidate who has passed the required training course shall be the same which was prescribed for admission to the said training course.

Rule 14 deals with the determination of vacancies and preparation of list in respect of appointment by direct recruitment to the post of Mistress of Nursery Schools and Assistant Masters of Junior Basic Schools under Rule 5(a), while Rule 15 deals with the notification of vacancies and preparation of list for certain posts of Assistant Masters of Senior Basic School in respect of direct recruitment under the proviso to Rule 5(b). Rule 18 deals with the procedure for recruitment by promotion.

As stated above, in the instant Appeal we are primarily concerned with the 1978 Rules since the Junior High School in question is neither owned nor controlled by the Board of Basic Education. Rule 4(1) deals with the minimum qualifications for the post of Assistant Teacher which is Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent Examination with Hindi and a Teacher's Training Course recognised by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training. On the other hand Rule 4(2) deals with the minimum qualifications for the post of Headmaster and it provides that the person must have a Degree from a recognised University or any equivalent examination recognised as such together with a Teacher's Training Course recognised by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training and three years' teaching experience in a recognised School. Rule 5 specifically provides that no person shall be appointed as Headmaster or Assistant Teacher in substantive capacity unless he possesses the minimum qualifications prescribed for such post and has been recommended for such appointment by the Selection Committee. Thus for either of the post of Assistant Teacher or Headmaster the person, amongst other requirements, must also possess a Teacher's Training Course recognised by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training.

Sri Ashok Khare, learned Senior counsel appearing for the appellant contended that the 1978 Rules and 1981 Rules are different even though both of them are applicable to the Junior High Schools and by comparing the two he submitted that though under the 1978 Rules appointment of Assistant Teachers and Headmaster can be made only by direct recruitment but under the 1981 Rules appointments to the posts of Assistant Teachers or Headmasters of a Senior Basis School can be made by way of promotion and only the post of Mistress of Nursery School and Assistant Master of Junior Basic School are filled in by direct recruitment. He further submitted that the minimum educational qualification required for appointment as Mistress of Nursery School and Assistant Master of Junior Basic Schools under the 1981 Rules is a training qualification consisting of a Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other Training Course recognised by the State Government as equivalent thereto and there being no prescription of any educational qualification separately for the post of Assistant Teacher and Headmaster of a Senior Basic School,  it should not be insisted upon that candidates directly recruited under the 1978 Rules should possess a Teacher's Training qualification required for direct recruitment at the Primary and Nursery level under the 1981 Rules. He further contends that the language used in Rule 8 of the 1981 Rules and Rule 4 of the 1978 Rules is entirely different and from this he contends that the Teacher's Training qualification under Rule 4 of 1978 Rules is not exhaustive but merely illustrative.

Learned counsel for the respondents, on the other hand, submitted that Rule 4 of the 1978 Rules is very specific and that the person must possess the Teacher's Training Course recognised by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training. The appellant, however, did not possess any of these Teacher's Training Course though he had the B.Ed. certificate and, therefore, he cannot be considered eligible for the post of Headmaster. According to him both under the 1978 Rules and the 1981 Rules, it is necessary for a person to possess the aforesaid Teacher's Training Course.

We have carefully considered the submissions advanced by the learned counsel for the parties.

It cannot be disputed that the Teacher's Training imparted to teachers for B.Ed. course equips them for teaching higher classes whereas the Basic Teaching Certificate (hereinafter referred to as ''B.T.C.') is given to teachers for teaching small children and the two cannot be compared with, as has been clearly observed by the Supreme Court in the case of Yogesh Kumar and others Vs. Government of NCT Delhi and others reported in (2003) 3 SCC 548. The duration of courses of B.T.C. and LT/B.Ed. are entirely different and have been devised keeping in view the stages through which the students pass. In the case of B.T.C. the method of Training Course is devised so as to meet the requirement of teaching at a formative stage for a student who enters the School. Thus it is evident that the training qualification for teaching small children is B.T.C. while the training qualification for teaching children in High Schools and Intermediate Colleges is B.Ed. or L.T.

We should, therefore, interpret Rule 4(1) of the 1978 Rules keeping in mind the observations made by us above and if we do so then there can be no manner of doubt that the Teacher's Training Course referred to in the said Rule should be confined to such Training Course which are imparted to teach small children only. This is the reason why the Legislature has specifically referred to four such Training Courses which are specifically confined to Specialised Training for imparting education to small children and if we interpret it in such a manner then the question whether the four Certificates referred to in Rule 4(1) of the 1978 Rules are exhaustive or illustrative may not assume much significance since even if it is held that they are merely illustrative then too we are of the opinion that only such other certificates can be taken into consideration which relate to Specialised Training for imparting education to small children. The B.Ed./L.T./B.P.Ed./C.P.Ed. or D.P.Ed. Certificates cannot, therefore, be taken into consideration.

The Legislature was conscious of the distinction between Training Course Certificates received by candidates to teach small children and the certificates received to teach higher classes as is apparent from the fact that those who had obtained the B.Ed./L.T./B.P.Ed./C.P.Ed. or D.P.Ed. Certificates were required to complete a special B.T.C. Training Course under the Government Order dated 9.1.1998. If such trained candidates having B.Ed./L.T./B.P.Ed./C.P.Ed. or D.P.Ed. Certificates were eligible to be considered for appointment as Assistant Teachers or Headmasters of a Junior High School, there would have been no necessity at all for them to have undergone the Special B.T.C. Training Course. This again emphasises what we had observed earlier that to teach small children a Specialised Training Course is necessary. In this respect reference may also be made to the provisions of Rule 6 of 1981 Rules referred to above wherein also while providing for the age limit of the candidates it has been clearly provided that there shall be no upper age limit in case of B.Ed./L.T./B.P.Ed./C.P.Ed. or D.P.Ed. Certificates candidates who had completed the Special B.T.C. Training course in the year 1999. The Legislature was, therefore, clearly conscious of the fact that for such candidates a special B.T.C. course was required to be undertaken before they could be considered eligible for appointment.

The matter can also be examined from a different angle. Under Rule 4(1) of the 1978 Rules, the Rule making authority has not merely restricted the minimum qualification to a Teacher's Training Course recognised by the State Government or the Board. Had it done so there would have been no difficulty at all and all Teacher's Training Course recognised by the State Government or the Board would have been treated to be sufficient. However, the clause proceeds further and goes on to illustrate the meaning of "Teacher's Training Course" by mentioning Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificate. This could not have been done without a purpose. It could only be to indicate the type of Teacher's Training Course, the Rule making authority had in mind and if we examine the four Certificates referred to in Rule 4(1) we find that all of them relate to Certificates granted in respect of imparting education to small children. We, therefore, have no hesitation in holding that the B.Ed./L.T./B.P.Ed./C.P.Ed. or D.P.Ed. Certificates cannot be considered as a Teacher's Training Course for the purposes of possessing the minimum qualification under the 1978 Rules. The view, which we have taken, finds support from the decision of the Supreme Court in the case of Royal Hatcheries Pvt. Ltd. and others Vs. State of A.P. and others reported in 1994 Supp (1) SCC 429.

We also do not agree with the contention of the learned Senior counsel that because of the difference in the wordings of the 1978 Rules and the 1981 Rules, it must be held that a Teacher's Training Course can also include the Training Certificates like B.Ed./L.T./B.P.Ed./C.P.Ed. or D.P.Ed. Certificates so far as the 1978 Rules are concerned. We have carefully perused both the aforesaid Rules and find that in both of them for the appointment to the post of Assistant Teacher or Headmaster under the 1978 Rules or the appointment to the post of Assistant Master or Headmaster of Senior Basic Schools under the 1981 Rules there is hardly any difference with regard to the possession of the training qualification and under both of them the candidates must possess the Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of Training or Basic Teaching Certificates which are recognised by the State Government or the Board.

Learned Senior counsel for the appellant then submitted that the possession of B.T.C. Certificate should be restricted to the level of Junior Basic Schools i.e. Classes I to V and not in respect of Classes VI to VIII. According to us this is a requirement, which is to be considered by the Legislature. The 1978 Rules are applicable in respect of Junior High Schools for imparting education from Classes VI to VIII and, therefore, we see no reason to limit the requirement to Classes I to V only. The Supreme Court in the case of P.M. Latha and another Vs. State of Kerala and others reported in (2003) 3 SCC 541 held as follows:-

"We find absolutely no force in the argument advanced by the respondents that BEd qualification is a higher qualification that TTC and, therefore, the BEd candidates should be held to be eligible to complete for the post. On behalf of the appellants, it is pointed out before us that Trained Teacher's Certificate is given to teachers specially trained to teach small children in primary classes whereas for BEd degree, the training imparted is to teach students of classes above primary. BEd degree-holders, therefore, cannot necessarily be held to be holding qualification suitable for appointment as teachers in primary schools. Whether for a particular post, the source of recruitment should be from the candidates with TTC qualification or BEd qualification, is a matter of recruitment policy. We find sufficient logic and justification in the State prescribing qualification for the post of primary teachers as only TTC and not BEd. Whether BEd qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider BEd candidates, for the present vacancies advertised, as eligible."

In the end, learned Senior counsel for the appellant submitted that practical difficulty should also to be taken into consideration since there is an extreme shortage of candidates possessing the Teacher's Training Certificate of B.T.C. We can only say that these are the matters to be considered by the State Government and so far as the Courts are concerned, we have to interpret the Rules in the form they exist. We cannot alter the meaning assigned to the Teacher's Training Course merely on account of the fact that there is a shortage of B.T.C. teachers in the State.

In view of the discussion made above, we are unable to interfere with the judgment and order of the learned Judge. The Special Appeal fails and is, accordingly, dismissed.

Dt/- 23.12.2004

Sharma


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