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Himachal Pradesh High Court · body

2012 DIGILAW 1000 (HP)

Vivek Singh v. State of Himachal Pradesh

2012-12-18

RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, Judge, (Oral): Petitioners are ex-servicemen. Case of the petitioners, in a nutshell, is that they are fully eligible and qualified to be considered for the posts of JBT reserved for ex-servicemen. 2. Mrs. Ranjana Parmar has strenuously argued that the respondent-State has not initiated the process for filling up the posts of JBTs reserved for ex-servicemen. 3. Mr. Vikas Rathore, learned Deputy Advocate General has submitted that the process has already been started vide Annexure R-2 dated 28.11.2011 for filling up the posts of JBT from ex-servicemen category. He further contended that the petitioners are not eligible for appointment as Junior Basic Trained Teacher in the State since they have not been selected on the basis of common entrance test conducted by the Himachal Pradesh Board of School Education for JBT Teachers course and the institutions from where they have passed the JBT Teachers course is also not affiliated with the Himachal Pradesh Board of School Education. He has put strong reliance on notification dated 21.6.2010. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. The process has already commenced by the respondent-State vide letter dated 28.11.2011 addressed by the Director of Elementary Education to the Director, Sainik Welfare, Ex-Servicemen Employment Cell, Hamirpur. Names of the petitioners are registered with the Ex-Servicemen Employment Cell. It is averred in the reply that the Ex-servicemen Cell after holding interviews, found only five JBT Ex-servicemen candidates eligible and recommended their names for appointment to the Department. These candidates have been offered appointments. It is also averred in the reply that the petitioners have also not qualified the Teachers Eligibility Test. 6. It is apparent that the case of the petitioners has not been considered by the respondent-State against 122 posts of JBT from the Ex-servicemen category only for the reason that they have not passed JBT or equivalent course on the basis of written test conducted by the H.P. Board of School Education and also that the institutions from whereby the petitioners have passed the JBT Teachers examination is not affiliated to the Himachal Pradesh Board of School Education. 7. 7. The validity of letter dated 21.7.2010 has already been gone into by this Court read in conjunction with the Himachal Pradesh, Primary Education Department, Junior Basic Trained Teacher, Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2000 read with amendment, which has been carried out on 16.12.2002, in case Kumud Gaur versus State of Himachal Pradesh and others, CWP (T) No. 9799 of 2008 decided on 23.9.2011. Rule 7 of the Recruitment and Promotion Rules, 2000 reads as under: “7. Minimum education and (a) ESSENTIAL other : qualifications required for i) Should be 10+2 with direct recruits 50% marks from a recognized Board of School Education/University. ii) Should possess two years JBT certificate course from an Institution duly recognized by the Central/State Govt. (b) DESIRABLE QUALIFICATION: Knowledge of customs, manner and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh. 8. An amendment has been carried out in the Recruitment and Promotion Rules on 16.12.2002, which reads thus: “…(c) For the existing provisions against column No. 7(a), the following shall be substituted, namely:- (i) Senior Secondary School Certificate or Intermediate or its equivalent; and (ii) Diploma or Courses Certificate in Basic teachers training of a duration not less than two years Or Bachelor of Elementary Education (B. EL. Ed). 9. The Court, after taking into consideration the notifications issued on 15.12.1983 and 21.7.2010 read with Recruitment and Promotion Rules, has held as under: “9………… Further, the Governor Himachal Pradesh has been pleased to order that the candidates who will complete and successfully pass the two years Junior basic teachers training course/diploma from an Institute, which is affiliated with the H.P. Board of School of Education and had admitted students strictly on merit, on the basis of Common Entrance Test conducted by the H.P. Board of School Education, will only be eligible for the appointment as Junior Basic Teachers in Himachal Pradesh, in accordance with the qualifications prescribed in the Junior Basic Trained Teachers R & P Rules. According to this notification, only those candidates were to be considered for appointment, who had possessed the qualification of Junior Basic Teachers Training Course/diploma of two years from an institute affiliated with H.P. Board of School Education and were admitted strictly on merit on the basis of Common Entrance Test, conducted by the H.P. Board of School Education. 13. Mr. According to this notification, only those candidates were to be considered for appointment, who had possessed the qualification of Junior Basic Teachers Training Course/diploma of two years from an institute affiliated with H.P. Board of School Education and were admitted strictly on merit on the basis of Common Entrance Test, conducted by the H.P. Board of School Education. 13. Mr. Vikas Rathore, learned Deputy Advocate General has argued that the State Government has taken a policy decision to restrict the mode of recruitment of J.B.T. teachers only from those candidates, who have obtained their diploma/certificate from the institution affiliated to the Himachal Pradesh Board of School Education on 23.07.2010. This decision is also contrary to the Recruitment and Promotion Rules. In case there is conflict between Recruitment and Promotion Rules and the executive instructions, it is settled law that the Rules shall prevail. Moreover, the letter dated 23.7.2010 will apply prospectively and can not take vested or accrued rights. According to Mr. Vikas Rathore, the candidates are admitted to the J.B.T. Course in the State of Himachal Pradesh on the basis of combined entrance test and they are admitted on the basis of merit. Merely that in the State of Himachal Pradesh, combined entrance test is held for filling up the seats of J.B.T. courses and in the adjoining States, the mode of induction into the Course is not test based on C.E.T., will not render these candidates ineligible for public employment. What is to be seen, is whether the candidate has obtained the diploma from a recognized institution by the Central/State Government or by the University/duly recognized Board. The candidates who have obtained diploma/certificate from the States, other than the State of Himachal Pradesh from a duly recognized institution, cannot be debarred for public employment. Respondents have not placed on record the syllabus taught to the candidates of J.B.T. getting training from the institutions in the State of Himachal Pradesh. The basic curriculum of the teachers training courses, including J.B.T. and B.Ed. more and less is the same. Teachers are trained to impart education and they are not taught according to the syllabus of a particular State prescribed for primary students. It will also be pertinent to state at this stage that the respondent-State has sought information from the National Council of Teachers Education whether the ETT diplomas awarded by various States are duly recognized or not. Teachers are trained to impart education and they are not taught according to the syllabus of a particular State prescribed for primary students. It will also be pertinent to state at this stage that the respondent-State has sought information from the National Council of Teachers Education whether the ETT diplomas awarded by various States are duly recognized or not. It is evident from the plain reading of letter dated 18.10.2005 placed on record by the respondent-State itself that the diplomas/certificates of ETT are validly recognized by various States in the schools. This letter has also been overlooked by the State while taking the decision on 01.09.2011.” 10. This Court in Naresh Kumar and others versus State of H.P. and another, CWP No. 7188/2010 decided on 19.8.2011 has held as under: “18………The public employment by the State cannot be restricted to a particular batch or candidates belonging to a particular institution. All the posts should be advertised for enabling all the candidates, who are in possession of J.B.T. qualification to participate in the selection process. Restricting the public employment to a particular batch or institution shall be violative of Articles 14 and 16 of the Constitution of India…………” 11. The Court is of the considered view that the Recruitment and Promotions Rules could not be altered/amended merely on the basis of letter dated 21.7.2010. Letter dated 21.7.2010 is contrary to the Recruitment and Promotion Rules. It is settled law that if there is conflict between rules and executive instructions, the rules will prevail. Recruitment to the post of JBT Teacher is to be made on the basis of JBT Teachers Course obtained by the candidate from recognized institution and the same could not be restricted to the institutions affiliated to the Himachal Pradesh Board of School Education on the basis of common entrance test. Mrs. Ranjana Parmar submitted that the petitioners have passed their JBT Teachers course from the recognized institutions and they are fully eligible and qualified to be considered for the post of JBT Teacher under the ex-servicemen category. 12. Accordingly, the writ petition is allowed. Respondent-State is directed to consider the case of the petitioners for the post of JBT Teacher as per the observations made hereinabove, within a period of three months from today. It is made clear that the petitioners are required to pass the Teachers Eligibility Test. Pending application(s), if any, also stands disposed of. 12. Accordingly, the writ petition is allowed. Respondent-State is directed to consider the case of the petitioners for the post of JBT Teacher as per the observations made hereinabove, within a period of three months from today. It is made clear that the petitioners are required to pass the Teachers Eligibility Test. Pending application(s), if any, also stands disposed of. No costs.