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2011 DIGILAW 636 (UTT)

Prakash Bhatt v. State of Uttarakhand

2011-10-13

SUDHANSHU DHULIA

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Judgment : Hon’ble Sudhanshu Dhulia, J. (Oral) Heard Mr. H. M. Bhatia, Mr. Alok Mehra and Mr. Jitendra Chaudhary, Advocates for the petitioners and Mr. B. D. Upadhyay, Additional Advocate General for the State of Uttarakhand. An information was sought from the learned Additional Advocate General seeking information as to whether there are any vacancy for the post of Assistant Teacher L.T. Grade in Physical Education in the State of Uttarakhand. A statement has been made at the bar that there are 193 vacancies for which he has relied upon a report given by the education authority. The same is taken on record and marked as Annexure X. In all these writ petitions, which are presently before this Court today, at the root lies an issue which is common to all and which needs to be determined which is as to whether Degree Holders in Physical Education known as B.P.Ed. are qualified for Assistant Teacher Physical Education though the required qualification is Diploma in Physical Education, which is D.P.Ed. Admittedly B.P.Ed. is a higher qualification than D.P.Ed. B.P.Ed. being a degree and D.P.Ed. being a diploma on the same subject i.e. Physical Education. The determination of that issue by this Court will resolve the controversy in all the aforesaid writ petitions. All the same, before coming to central issue, as referred above, the brief history of the case must be narrated which is as follows. Vacancy for the post of Assistant Teacher LT Grade was advertised by the Government of Uttarakhand in the year 2002 and thereafter in the year 2004. In the year 2009 certain vacant posts of Assistant Teacher LT Grade in Physical Education were to be filled by Government of Uttarakhand. One of the essential qualifications for the said post was Diploma in Physical Education. The petitioners in writ petition no. (S/S) 95 of 2009 and in writ petition no. (S/S) 190 of 2010 were the Degree holders (as different from Diploma holders) could not secure the appointment on the ground that they do not have the minimum qualification of Diploma in Physical Education. This selection was challenged by the petitioners in writ petition no. (S/S) 95 of 2009 and writ petition no. 190 (S/S) of 2010. (S/S) 190 of 2010 were the Degree holders (as different from Diploma holders) could not secure the appointment on the ground that they do not have the minimum qualification of Diploma in Physical Education. This selection was challenged by the petitioners in writ petition no. (S/S) 95 of 2009 and writ petition no. 190 (S/S) of 2010. The principal contention of the petitioners (in the above writ petition) was that they have a higher qualification in the same stream than what was required and merely because they have higher qualification they cannot be discarded, as logically having higher qualification they do have the lower qualification as well which is the requirement for the post. Even the learned Single Judge of this Court while dealing with said issue passed an ad interim stay order dated 6.7.2009 in the writ petition no. (S/S) 95 of 2009 which reads as follows: “Mr. Hari Mohan Bhatia, Advocate for the petitioners. Mr. H. M. Raturi, Standing Counsel for the State of Uttarakhand/respondent nos. 1 to 3. List this petition on 24th July, 2009 in part I of the cause list. Till the next date of listing no further appointments shall be made. ” Subsequently, when the State filed its counter affidavit, the other private individuals also moved their respective application before the Court praying for the vacation of the said interim order. The learned Single Judge of this Court vacated the interim order by passing the following order :- “Heard learned counsel for the parties. Admit the petition. Also, heard on application for interim relief. By means of this writ petition, the petitioners have sought writ in the nature of mandamus, directing the respondents to appoint the petitioners in L.T. Grade (T.G.T.) teacher in physical education, in pursuance to the advertisement issued in the year 2002 for Kumaon Division, and in the year 2004 for Kumaon as well as Garhwal Division. The case of the petitioners is that, the petitioners are fully qualified to be considered for appointment for aforesaid posts, even though, they do not possess diploma in physical education, as they hold degree in physical education. A counter affidavit has been filed on behalf of respondents No. 2 and 3, in which it is stated that the petitioners do not fulfill the requisite qualification for the post of L.T. Grade (T.G.T.) teacher in physical education. A counter affidavit has been filed on behalf of respondents No. 2 and 3, in which it is stated that the petitioners do not fulfill the requisite qualification for the post of L.T. Grade (T.G.T.) teacher in physical education. It is stated in the counter affidavit that under the U.P. Subordinate Educational (Trained Graduate Grade) Service Rules, 1983, as amended, minimum qualification for appointment as Assistant Teacher (Physical Education) is as under: “Bachelor degree from a recognized university or a degree recognized by the Government as equivalent thereto, and diploma in physical education.” It has been further stated in the counter affidavit that similar issue was raised earlier in which the mater went upto the Apex court, and the Apex court vide its order dated 16.12.2008, passed in Leave Petition No. 1466 of 2006; Dhananjay Malik and others Vs. State of Uttarakhand and others (2008) 4 Supreme Court Cases 171, upheld the validity of aforesaid rule. Learned Standing Counsel pointed out that validity of the rule is not challenged in this writ petition. It is conceded by learned counsel for the parties that in the rules applicable after 2006, B.P.Ed. has been recognized following the regulations made by National Council for Teacher Education, but earlier rules of 1983 were applicable, and the rules of 2006 cannot be applied retrospectively. Learned counsel for the petitioners submitted that similarly situated candidates to the petitioners were appointed by the respondents as Assistant Teacher (Physical Education). However, the names of such persons are not disclosed, as such, the respondents have no opportunity to deny the same or to explain that under what circumstances, if any, such persons are appointed. Apart from this, in view of principle of law laid down in Doiwala Sehkari Shram Samvida Samiti Ltd. Vs. State of Uttaranchal and others (2007) 11 Supreme Court Cases 641, merely for the reason that some wrong has been committed, the respondents could not be directed to commit the wrong again. Having heard learned counsel for the parties, in the above circumstances, this Court is not inclined to extend the interim order dated 06.07.2009. The same stands vacated. The Interim Relief Application No. 778 of 2009 is disposed of with the observation that the appointments, if any, made on the post of Assistant Teacher (Physical Education), the same shall be subject to decision of this writ petition. The same stands vacated. The Interim Relief Application No. 778 of 2009 is disposed of with the observation that the appointments, if any, made on the post of Assistant Teacher (Physical Education), the same shall be subject to decision of this writ petition. (Urgency Application No. 3297 of 2009 also stands disposed of). List this writ petition for final hearing after winter vacations.” It is therefore clear that by the subsequent order dated 8.12.2009 the State was given liberty to go ahead with the selection and appointment of Assistant Teacher LT Grade but it was made clear that the said selection and appointment shall be subject to the final disposal of the writ petition. All the same, since the interim order was vacated, the petitioners filed a special appeal being Special Appeal No. 240 of 2009. The Division Bench of this Court had called for the records of the writ petition and the matter was disposed of in the said special appeal itself allowing the writ petition of the petitioners. Division Bench of this Court primarily relied upon a decision of the Hon’ble Apex Court, namely, Jyoti K.K. Vs. Kerala Public Service Commission reported in [2002] Supp 1 JT 85/ [2002] 2 UJ 941 wherein the Hon’ble Apex Court on a similar controversy have held that higher qualification which is of same stream cannot be discarded and person having higher qualification in the same stream will be held to be qualified. Relevant portion of the Hon’ble Apex Court decision contained in Para 9 of the said judgment is quoted below:- “9. It is no doubt true, as stated by the High Court that when a qualification has been set out under the relevant rules, the same cannot be in any manner whittled down and a different qualification cannot be adopted. The High Court is also justified in stating that the higher qualification must clearly indicate or presuppose the acquisition of the lower qualification prescribed for the post shall also be sufficient for the post. If a person has acquired higher qualifications in the same faculty, such qualification can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post. In this case it may not be necessary to seek far. If a person has acquired higher qualifications in the same faculty, such qualification can certainly be stated to presuppose the acquisition of the lower qualifications prescribed for the post. In this case it may not be necessary to seek far. Under the relevant rules, for the post of assistant engineer, degree in electrical engineering of Kerala University or other equivalent qualification recognized or equivalent thereto has been prescribed. For a higher post when a direct recruitment has to be held, the qualification has to be obtained, obviously gives an indication that such qualification is definitely higher qualification than what is prescribed for the lower post, namely, the post of sub-engineer. In that view of the matter the qualification of degree in electrical engineering presupposes the acquisition of the lower qualification of diploma in that subject prescribed for the post, shall be considered to be sufficient for that post. In the event the government is of the view that only diploma holders should have applied to post of sub-engineers but not all those who possess higher qualifications, either this rule should have excluded in respect of candidates who possess higher qualifications or the position should have been made clear that degree holder shall not be eligible to apply for such post. When that position is not clear but on the other hand rules do not disqualify per se the holders of higher qualifications in the same faculty, it becomes clear that the rule could be understood in an appropriate manner as stated above. In that view of the matter the order of the High Court cannot be sustained. In this case we are not concerned with the question whether all those who possess such qualifications could have applied or not. When statutory rules have been published and those rules are applicable, it presupposes that everyone concerned with such appointments will be aware of such rules or make himself aware of the rules before making appropriate applications. The High Court, therefore, is not justified in holding that recruitment of appellants would amount to fraud on the public.” Thereafter, the Division Bench of this Court relied upon para 10 of the aforesaid decision, which reads as under:- “10. However, we must notice one aspect of the matter. The High Court, therefore, is not justified in holding that recruitment of appellants would amount to fraud on the public.” Thereafter, the Division Bench of this Court relied upon para 10 of the aforesaid decision, which reads as under:- “10. However, we must notice one aspect of the matter. The diploma holders who had been selected by the Public Service Commission have already been appointed and, therefore, it would not be appropriate for us to disturb those appointments. They shall continue in such appointments. Such of those eligible degree holders who fulfil the qualifications referred to above and found suitable to be appointed shall be appointed taking note of the vacancies which are available within a period of three months from the date of receipt of this order.” In terms of the Division Bench decision of this Court, the petitioners in writ petition no. (S/S) 95 of 2009 were liable to be given appointment. Consequent to the decision of the Division Bench of this Court, Government of Uttarakhand and the Education Authorities included the petitioners as selected candidates (in writ petition no. (S/S) 95 of 2009) holding them to be eligible and consequently removed certain other candidates from the list of selected candidates. The candidates thus removed consequently filed writ petition no. (S/S) 912 of 2010 and writ petition no. (S/S) 925 of 2010. Learned Single Judge of this Court stayed the termination order of the petitioners. These petitioners subsequently also moved a review petition before this Court seeking to review the order of the Division Bench in Special Appeal No. 240 of 2009. The said review petition was allowed by Division Bench of this Court on 23.2.2011. (S/S) 925 of 2010. Learned Single Judge of this Court stayed the termination order of the petitioners. These petitioners subsequently also moved a review petition before this Court seeking to review the order of the Division Bench in Special Appeal No. 240 of 2009. The said review petition was allowed by Division Bench of this Court on 23.2.2011. The sole consideration before the Division Bench while allowing the special appeal (as well as writ petition) earlier was that the fact that during the pendency of these cases certain candidates have already been selected and their candidature will be affected by the decision of Division Bench and since these candidates were not heard by the Division Bench, the Division Bench though observing that these facts were never brought to the notice of Division Bench earlier, however, recalled the earlier order dated 8.3.2010 and passed an order as under:- “…Inasmuch as the appeal was against modification of the interim order and, inasmuch as, we have noticed that before the interim order was passed, which was subsequently modified by the order under appeal, appointments were given, it would be futile to keep this appeal pending in this Court. On the other hand, we feel that the writ petition should be decided on its merit and, accordingly, after disposing of the appeal, we remit the matter to the learned Single Judge for deciding the writ petition on its merit, as quickly as possible. We, however, restrain the State Government from giving any further appointment to anyone, until disposal of the writ petition.” These matters have now come up before this Court for final adjudication. On these new set of facts, counsel for the petitioners in writ petition no. (S/S) 95 of 2009 as well as in writ petition no. (S/S) 190 of 2010 are those petitioners who have the higher qualification i.e. Degree in Physical Education and who had not been considered for appointment. There are also the petitioners before this Court in writ petition no. (S/S) 912 of 2010 and writ petition no. (S/S) 925 of 2010 who stood removed from selected list in consequence of earlier decision of Division Bench. After hearing the counsel for the petitioners as well as counsel for the respondents this Court is of considered opinion that the matter be disposed of follows. (S/S) 912 of 2010 and writ petition no. (S/S) 925 of 2010 who stood removed from selected list in consequence of earlier decision of Division Bench. After hearing the counsel for the petitioners as well as counsel for the respondents this Court is of considered opinion that the matter be disposed of follows. The question as regarding the non consideration of the case of the petitioners in writ petition no. (S/S) 95 of 2009 and writ petition (S/S) 190 of 2010 for the fact that they have higher qualification also stands determined by the Division Bench of this Court which has been done after following the decision of Hon’ble Apex Court where the law has been clear and unambiguous that higher qualification in the same stream would include lower qualification and therefore the candidates having the Bachelor Degree in Physical Education are qualified and will be deemed to have the minimum qualification of Diploma in Physical Education. This decision of the Division Bench is binding upon this Court. The question is as to what is to be fate of those candidates who have already been selected on the basis of their D.P.Ed. and would now have been removed by the petitioners (in writ petition no. (S/S) 95 of 2009 and Writ Petition (S/S) No. 190 of 2010) if their writ petitions are allowed. In fact it was this factor alone which weighed in the mind of the later Division Bench, which solely on this single aspect reverted the matter before this Court. Learned counsel for the petitioners as well as learned Additional Advocate General have pointed out that the solution is given in Hon’ble Apex Court decision on which reliance was placed by the Division Bench of this Court while dealing that the degree holders are qualified as Assistant Teacher in Physical Education. In the case of Jyoti K.K. (supra) the Hon’ble Apex Court while dealing with the candidates who have higher qualification are held eligible but did not pass an order to remove those who were already selected. This Court on the last occasion had also asked from learned Additional Advocate General to apprise this Court as to whether there are vacancies of Assistant Teacher in the State of Uttarakhand and to this a statement has already been made by Additional Advocate General that there are 193 vacancies which have already been recorded above. This Court on the last occasion had also asked from learned Additional Advocate General to apprise this Court as to whether there are vacancies of Assistant Teacher in the State of Uttarakhand and to this a statement has already been made by Additional Advocate General that there are 193 vacancies which have already been recorded above. Based on this, this Court holds that the petitioners having Degree in Physical Education are qualified and they were wrongly made ineligible and therefore the writ petition no. (S/S) 95 of 2009 and writ petition no. 190 (S/S) of 2010 are allowed, as held earlier by the Division Bench of this Court in Special Appeal No. 240 of 2009, which is binding upon this Court. It further observes that the candidates who have already been selected shall not be removed in view of the said Hon’ble Apex Court decision in Jyoti K.K. Vs. Kerala Public Service Commission reported in [2002] Supp 1 JT 85/ [2002] 2 UJ 941, particularly in view of the fact which is now on record that there are 193 posts of Assistant Teacher L.T. Grade (Physical Education) already lying vacant on which such diploma holders who stand removed earlier can be adjusted. Since this matter has already been delayed, it is hoped and expected that respondents shall expedite this matter and issue the appointment orders to the selected candidates, as determined by this Court as above, as early as possible. As such, Writ Petition No. (S/S) 912 of 2010 and Writ Petition No. (S/S) 925 of 2010 are also allowed and the impugned order dated 28.9.2010 is quashed, subject to the directions made above. No order as to costs.