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Shyam Karan Singh And Others v. Basic Shiksha Parishad And Others - WRIT - A No. 27581 of 1994  RD-AH 693 (31 August 2004)
Court No. 6/AFR
Civil Misc. Writ Petition No. 27581 of 1994.
Shyam Karan Singh and another.....................................Petitioners.
Basic Shiksha Parishad, U.P., Allahabad
through Secretary and another........................................Respondents.
Hon'ble R.B. Misra, J.
Heard Sri S.K. Mishra, learned Counsel for the petitioners, and Sri K.S. Shukla, learned Counsel for the respondents.
In this petition prayer has been made to quash the order dated 26.05.1994 (Annexure-17 to the writ petition) passed by the Secretary, Basic Shiksha Parishad, U.P., Allahabad, whereby in compliance to the orders dated 21.03.1994 passed by this Court in Writ Petition No. Nil of 1994 (Shyam Karan Singh Vs. Zila Basic Shiksha Samiti, Fatehpur and others) and in Writ Petition No. Nil of 1994 (Gobardhan Prasad Vs. Zila Basic Shiksha Samiti, Fatehpur and others) in the light of the judgment of this Court dated 15.10.1993 passed in Writ Petition No. 5988 of 1990 (Shiv Shanker Vs. Zila Basic Shiksha Samiti, Fatehpur and others) and judgment dated 13.12.1993 passed in Writ Petition No. 6766 of 1990 (Daya Shanker Vs. Zila Basic Shiksha Samiti, Fatehpur and others) petitioners' representations were decided and the petitioners were held to be not in possession of the minimum requirement and training for appointment to the post of Assistant Teacher in Junior High School in non-government colleges and also they were not held entitled to the salary and the petitioners' appointments were not recognized as teachers of Basic Shiksha Parishad.
According to the petitioners, Sri Swami Priyadas Junior High School Jarauli, District Fatehpur (hereinafter in short called as ''School') was initially established for imparting education from Class-VI to Class-VIII in the year 1973 and was recognized as Junior High School by the Basic Shiksha Parishad, U.P, Allahabad (hereinafter in short called as ''Parishad'). Subsequently, sometimes in the year 1990 the said ''School' was handed over by the society (which was running the same) to the ''Parishad'. This fact was initially denied by the respondents, however, in the order dated 15.10.1993 passed in Writ Petition No. 5988 of 1990 and in the order dated 13.12.1993 passed in Writ Petition No. 6766 of 1990 (as referred above) this issue was decided in favour of the petitioners and it was indicated that the said ''School' was taken over by the ''Parishad'. The petitioner no. 1 was initially appointed as Assistant Teacher in the abovesaid school on 30.04.1972 and at that time the petitioner no.1 was not acquired the B.T.C. certificate. The petitioner no.2 was initially appointed in the year 1983 as Assistant Teacher in ''School' by virtue of being B.A., B.Ed., however, when the petitioners were not being paid salary, they approached this Court by filing the writ petitions and the writ petitions were disposed of, as indicated above, by order dated 21.03.1994, in the light of which the representations of the petitioners were rejected by order dated 26.05.2004. Hence this writ petition.
For appointment as an Assistant Teacher in Non-Government Junior High Schools the required qualification in reference to Rule-8 of U.P. Basic Education (Teachers' Service) Rules, 1981 is Intermediate and Basic Teachers' Certificate, Hindustani Teachers' Certificate, J.T.C., T.C. or any other training certificate recognized by the Government as equivalent thereto.
According to the petitioners, at the relevant time of appointment though they were not in possession of the certificate of B.T.C., however, the petitioner no. 1 was allowed to impart training of B.T.C. Subsequently, the petitioner no.2, who is B.A., B.Ed., though an untrained teacher but by virtue of having a higher qualification could be given relaxation in view of the circular no. 1807/15-(13)-94-1499 (8)/77 dated 21st October, 1994, whereby it was provided that the teachers, who have served as untrained teachers for 10 years, could be given relaxation from B.T.C. training course.
According to learned Counsel for the petitioners, the petitioners were not allowed to work as Assistant Teachers in the ''School' after taking over the ''School' in question, however, the decision of the Secretary of ''Parishad' that the said school was not taken over by the ''Parishad' is erroneous in view of the verdict and specific indication made in the order dated 13.12.1993 passed in Writ Petition No. 6766 of 1990 (Daya Shanker Vs. Zila Basic Shiksha Adhikari and others), therefore, according to the petitioners this issue was not to be even touched in the impugned order. In respect of other part in the impugned order dated 26.05.1994 that the petitioners were not having minimum qualification as required for appointment as Assistant Teacher, learned Counsel for the petitioners invited attention of this Court on (1990) 1 UPLBEC 351 (Riksha Pal Singh Vs. Secretary, U.P. Basic Education Board, Allahabad and others), where it was indicated that the petitioner being an untrained assistant teacher was deployed in the Junior High School and his service was to be governed by the provisions of U.P. Basic Education Act, 1972 as well as U.P. Recognized Basic School (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978(hereinafter in short called as ''Rules, 1978') and the service of such writ petitioner was said to have been termination on the ground that the writ petitioner was not having a certificate of teachers training course as required under ''Rules, 1978', therefore, it was held that such teachers can not be terminated on that ground as the requirement of training as indicated in the ''Rules, 1978' was not promulgated with retrospective effect. In view of the judgment of this Court in (1999) 3 UPLBEC 2379 (Pati Ram Yadav Vs. State of U.P. and others) the appointment of the writ petitioner as untrained teacher could not be said to be illegal or irregular in view of the ''Rules, 1978' and such writ petitioner could not have been treated to be as untrained teacher. In view of the judgment of this Court in 1982 UPLBEC 365 (Smt. Shanti Devi Verma Vs. The Deputy Director of Education, Region-I, Meerut and others) the appointment of the writ petitioner not obtained by fraud will not be void and could utmost be irregular and disqualification could be cured by that teacher by getting himself qualification even after appointment in view of the Section 16-F(1) of the U.P. Intermediate Education Act, 1921.
According to the petitioners, in the decision of the Supreme Court in A.I.R. 1978 SC 1536 (Ram Sarup Vs. State of Haryana and others) the appointment of Labour-cum-Conciliation Officer under Rule 4 (1) of the Punjab Labour Services (Class-I & II) Rules, 1955 was held irregular only and not void, as by virtue of his initial appointment he had worked for 9 years and the writ petitioner was deemed to have been validly appointed on completion of necessary qualification.
According to the learned Counsel for the respondents the benefit of the above circular dated 21st October, 1994 could be given only to those teachers, who are working in the college and intended to seek protection of such provisions as indicated in the above circular and claim for relaxation of B.T.C. Training course. According to the respondents, since the petitioners are not working in the ''School', therefore, they are not entitled to the benefit of the said circular, which came subsequently in operation i.e. from 21st October, 1994.
According to the respondents, undisputedly initially the petitioners were not having minimum qualification of B.T.C. course, however, by virtue of their non-continuance in service any protection of the above referred cases, namely, Riksh Pal Singh (supra), Pati Ram Yadav (supra), Smt. Shanti Devi Verma (supra) as well as Ram Sarup (supra) could not be extended to the petitioners as the question of relaxation of minimum requirement of training for appointment as Assistant Teacher could be only applicable when the petitioners were working and question comes for consideration of their experience and services rendered.
In respect of appointment of the petitioners at subsequent stage in the year 1996 the respondents are not controverting the same in absence of any instruction to that effect.
I have heard learned Counsels for the parties. I find that initially the question of taking over of the ''School' in question has already been covered by the judgment dated 15.10.1993 as indicated above and so far as minimum qualification for appointment as Assistant Teacher in view of the ''Rules, 1978' is concerned, undisputedly the petitioners were not having the same, as such, their appointment was illegal or irregular. I find force in the contentions of the respondents that since the petitioners are not working in the ''School' either on the strength of the interim order or in any view of the circumstances, therefore, the protection of the above referred cases can not be extended to the petitioners.
In Rajendra Prasad Vs. Karnataka University, AIR 1986 SC 1448, it was held that the equivalence has to be decided by the University as it was not a matter of objective assessment and evaluation by the Court. In J. Ranga Swami Vs. Government of Andhra Pradesh, AIR 1980 SC 535, it was held by the Supreme Court that it was not for the Court to consider the relevance of qualifications prescribed for various posts. Relying upon the principle laid down by the Supreme Court in the aforestated cases, it was held that it is not for the court to assess the comparative merits of B.T.C. (Correspondence) trained teachers and parity cannot be claimed with unemployed B.T.C. candidates. Trained candidates treating them as equal would tantamount to treating unequals as equal. It may be observed that candidates appearing in B.T.C. (Correspondence) training examination were not required to attend theory and practical classes regularly whereas regular B.T.C. training candidates have to attend theory and practical classes regularly. The object of B.T.C. (Correspondence) course as pointed out earlier was to confer status of a trained teacher to an untrained teacher already in employment. In these circumstances exclusion of B.T.C. (Correspondence) trained teachers from the field of eligibility does not violate Articles 14 and 16 of the Constitution. The advertisement confining the field of eligibility to unemployed B.T.C. trained candidates does not suffer from the vice of arbitrariness. In fact exclusion of B.T.C. (Correspondence) trained teachers from the field of eligibility for purposes of appointment to the posts of assistant masters and assistant mistress in Junior Basic Schools controlled and run by U.P. Board of Basic Education is a matter of policy decision and therefore, the decision to exclude persons already in employment from the field of consideration cannot be said to be arbitrary or violative of any constitutional or legal right. [Virendra Bahadur Singh Vs. State of U.P., 1995 (1) UPLBEC 628: 1995 (1) ESC 462 (All.)].
The mere fact that a person holds a higher training qualification that what is required by the Rules does not entitle him to be treated as qualified for teaching in Junior Basic School where a different kind of training is required. The course of studies by B.T.C., H.T.C., and J.T.C. are different from that of B.Ed. as held in 1998 (3) UPLBEC 2366 (Hari Om Vs. State of U.P.).
In these circumstances and in view of the above observations the finding of the Secretary of ''Parishad' in the impugned order dated 26.05.1994 that the petitioners were not having minimum qualification, therefore, their appointment can not be said to be genuine and are not entitled to salary, can not be interfered with and no relief as prayed for could be given in favour of the petitioners.
In view of the above observations, the writ petition is dismissed.
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