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2004 DIGILAW 425 (RAJ)

Ummed Ali v. State of Raj

2004-03-18

K.K.ACHARYA, RAJESH BALIA

body2004
JUDGMENT 1. This writ petition has been filed challenging the termination of services of the petitioner as Physical Training Inspector Grade III. 2. The petitioner who is a member of Scheduled Caste had obtained a degree in Arts from Maharshi Dayanand Saraswati University, Ajmer and thereafter a degree in Physical Education from Nagpur University, Nagpur in 5 the year 1997-98. He has been appointed in pursuance of the recruitment which took place after an advertisement was issued inviting applications for recruitment to the post of Physical Training Instructor Grade III for the year 1998-99. He has been appointed on 27.2.1999 and in pursuance thereof he joined duties on 11.3.1999. However, vide order dated 15.5.1999, the services of the petitioner were terminated at the close of session and he was not allowed to join the duties after commencement of the new session inter alia on the ground that he has passed and obtained the degree of Physical Education from Nagpur University, Nagpur, which has not been recognised by the National Council for Teachers Education, set up under the National Council for Teacher Education Act, 1993 (hereinafter referred to as the Act of 1993" only) and in view of the scheme of Chapter IV of the Act of 1993, every institution offering or intending to offer a course or training in teacher education on or after the appointed day must have recognization for imparting such training or course from the National Council for Teacher Education from its regional committee. Number of other candidates who were granted appointment through the same selection were allowed to continue in service after summer break. 3. in the first instance, the Division Bench of this Court vide its judgment dated 9.8.2000 declared Section 17(4) of the Act of 1993 ultra vires 5 and following the said decision the writ petition, setting aside the termination order under challenge. 4. The said decision rendered in Shah Govardhan Lal Kabra Teachers College v. Union of India & Ors., (D.B. Civil Writ Petition No. 1644/1999) has been set aside by Hon'ble Supreme Court vide its judgment dated 10 23.10.2002, holding the provisions to be intra vires and remitted the writ petition back to the High Court for being considered if any on other points surviving for consideration. Judgment rendered in this petition was also set aside and case was remanded back. Thus, this petition is back in this Court for hearing. Judgment rendered in this petition was also set aside and case was remanded back. Thus, this petition is back in this Court for hearing. 5. Learned counsel for the petitioner has contended before us that The petitioner had passed and obtained the degree in physical education for Nagpur University, Nagpur in the year 1997-98 and vide communication dated 14.10.1998, it is apparent that the Physical Education course offered by Jyotiba College of Physical Education, Hingana Road, Nagpur was provisionally recognised upto 1998-99. The said document is Annexure-13 on record. On this premise, it is contended that as on the date the petitioner obtained the degree in physical education, the institution from which he has been trained was recognised under the Act of 1993. Therefore, the petitioner cannot be refused continued appointment on the basis of ineligibility on the ground that petitioner had a degree in physical education from an 25 unrecognised institution. 6. Learned counsel for the respondent while has no dispute about tie facts but contends that since the recognization of the institution for offering a course of training in teacher education is a pre-condition before the same can be considered an eligibility qualification under the Act of 1993 for offering 30 appointment as teacher, refers to final recognization and provisional recognization cannot entail an absolute right The appointment was given provisionally and since the ultimate recognization has not been upheld. the termination order or non-continuance of the petitioner after summer break does not call for interference. 7. Having given our anxious consideration to the contentions raised by the learned counsel for the parties and perusing the scheme of Chapter IV of the Act of 1993, it appears to us that the contention of the learned counsel for the petitioner must be sustained. 8. The scheme unfolded under Sections 14 to 17 of the Act of 1993 40 clearly reveals that until the matter of recognization is under consideration and the order of refusal is communicated to the concerned institute, it is authorised to offer a course or training in the teacher education as a recognised institution and it does not get obliterated subsequently on non-recognization of the institution. 9. 9. Section 14 of the Act of 1993 requires that every institution offering or intending to offer a course or training in teacher education on or after the appointed day may, for grant of recognition make an application to the Regional Committee concerned in such form and in such manner as may be determined by regulations. However, its recognition is sustained for a period so by the Proviso is as follows: "Provided that an institute offering a course or training in teacher education immediately before the appointed day, shall be entitled to continue such course or training for a period of six months, if it has I made an application for recognition within the said period and until the disposal of the application by the Regional Committee". 10. Thus, the proviso makes it clear that the pre-existing recognition continues until six months automatically and if within the said period the 5 application for recognition is made, it further continues until the disposal of the application by the Regional Committee. 11. Sub-section (5) of Section of the Act of 1993 provides the date from which the refusal of recognition becomes operative. It reads that every institution, in respect of which recognition has been refused shall discontinue i o the course or training in teacher education from the end of the academic session next following the date of receipt of the order retuning recognition passed under clause (b) of sub-section (3). Apparently, the on going course at the time of disposal of the application for recognition are not slated to be closed abruptly to the detriment of the trainees undergoing the training in that institute but the on going academic session in every institution whose recognition continues as a result of proviso to Section 14(1) of the Act of 1993, is permitted to complete the examination of on going session and its non-recognition shall come into force only w.e.f. the end of the academic session next following the current session. The degrees thus granted upto continuance of recognition cannot be bailed out. 12. The like result follows by perusing second proviso to Section 17(1) of the Act of 1993 which reads as under: "Provided further that the order withdrawing or refusing recognition passed by the Regional Committee shall come into force only with 25 effect from the end of the academic session next following the date of communication of such order." 13. 12. The like result follows by perusing second proviso to Section 17(1) of the Act of 1993 which reads as under: "Provided further that the order withdrawing or refusing recognition passed by the Regional Committee shall come into force only with 25 effect from the end of the academic session next following the date of communication of such order." 13. In this connection, Sub-section (3) of Section 17 of the Act of 1993 is also relevant to be noticed which reads as under: "Once the recognition of a recognised institution is withdrawn under Sub-section (1), such institution shall discontinue the course or training in teacher education, and the concerned University or the examining body shall cancel affiliation of the institution in accordance with the order passed under sub-section (1), with effect from the end of the academic session next following the date of communication of the said order." 14. The combined effect of reading of these provisions leads us to conclude that the Jyotiba College of Physical Education, Hingana Road, Nagpur, where the petitioner was trained for physical education, was provisionally recognised upto the academic session 1998-99. The degree for physical education granted to the petitioner in the year 1997-98 to a trainee in that institute cannot be ignored for the purpose of considering requisite eligibility for giving appointment to the post of Physical Training Instructor. 15. Our attention is also invited to a Division Bench judgement dated 45 2.4.2003, rendered in D.B. Civil Writ Petition no. 2884/1999 (Ram Narain v. State) to which one of us was a member, in which it has been held as under: "Moreover, the case of the petitioners did not end with mere selection and inclusion in selection list but they were actually offered so appointment in order of merit soon after their selection in February/ March 1999 and they continued to be appointed untill 15.5.99 when the academic session 1998-99 closed. Subsequent thereto when all other selected candidates whose institutions had been recognised were given appointment from the new session. The same treatment was denied to the Petitioners only on the ground that the Nagpur University was not included in the list of recognised institution by the NCTE and the termination order became permanent. Subsequent thereto when all other selected candidates whose institutions had been recognised were given appointment from the new session. The same treatment was denied to the Petitioners only on the ground that the Nagpur University was not included in the list of recognised institution by the NCTE and the termination order became permanent. This act of the respondents in our opinion cannot of sustained and the reason for not giving continued appointment for the next session has been found by us as aforesaid not sustainable and there is no other reason for not giving the same treatment to the petitioners. Consequently, the termination order deserves to be quashed and the action of the respondents in not continuing the petitioners from the succeeding academic session also cannot be sustained. We are also of the opinion that the appointment having been offered in pursuance of the regular selection against existing posts, respondents cannot deny the petitioners from their continuation of service emoluments of the period of summer vacation by giving such artificial breaks. Such services on regular appointment must be treated to be continuous for all purposes." 16. In view of above, the writ petition is allowed. The impugned order terminating services of the petitioner w.e.f. 15.5.1999 is quashed and it is declared that the petitioner continued in service in pursuance of his regular selection made in pursuance of the advertisement issued by the District Education Officer, Churu in 1998. The petitioner shall be reinstated within a period of 15 days. The petitioner shall also be entitled to all consequential benefits, which shall be given to him within a period of three months from the date of service of writ or submission of certified copy of the order whichever is earlier. No costs.Writ Petition Allowed. *******