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2012 DIGILAW 1008 (HP)

Bishan Singh v. State of Himachal Pradesh

2012-12-19

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, Judge. Complaint is that despite the names of petitioners having been sponsored vide letter dated 1st April, 2011, Annexure P-5 for appointment as JBT Teachers against the posts reserved for Ex-Servicemen category and forwarded by the Deputy Director, Elementary Education, Hamirpur, the 3rd respondent to Director, Elementary Education, Himachal Pradesh, the 2nd respondent, offer of appointment has not been made to them within two weeks as required under sub-clause (3) of para 20.10.3(c) of Chapter 20, Hand Book on Personnel Matters, Vol.II. Hence, this writ petition with the following prayers:- “i) That respondents may kindly be directed to appoint petitioners as Junior Basic Trained Teachers as their names have been recommended by the Ex-Servicemen Cell without any further delay with all consequential benefits. ii) That respondents may kindly be restrained from making appointments as J.B.T. teachers against ex-servicemen quota from those ex-servicemen who have obtained JBT training from DEIT in H.P. and the respondents may further be directed to make appointments to the post of JBT teachers from the nominated list of JBT candidates through Ex-servicemen cell.” 2. The stand of the respondent-State in reply filed on the affidavit of 2nd respondent, in a nutshell, is that as per decision taken by the respondent-State, notified vide notification dated 21st July, 2010 only those candidates are eligible for appointment as JBT teachers selected strictly on merits through common entrance test conducted by H.P. Board of School Education after successfully qualifying two years JBT training from an Institute affiliated to the H.P. Board of School Education. There are 15% seats reserved for Ex-Servicemen category to undergo the JBT training through common entrance test on merits and the candidates of this category can only be considered on qualifying for such training from an Institute affiliated to H.P. Board of School Education successfully. A reference has also been made to Right to Education Act, 2009, which provides for appointment of a person as teacher having minimum qualification prescribed under the Recruitment and Promotion Rules. Since the petitioners were not eligible as per Recruitment and Promotion Rules for the post of JBT teacher, therefore, cannot be considered for appointment as such. 3. A reference has also been made to Right to Education Act, 2009, which provides for appointment of a person as teacher having minimum qualification prescribed under the Recruitment and Promotion Rules. Since the petitioners were not eligible as per Recruitment and Promotion Rules for the post of JBT teacher, therefore, cannot be considered for appointment as such. 3. Respondent No.4 in separate reply to the writ petition while making reference to Right to Education Act, 2009 and the communication annexure R-1, addressed to the said respondent by the 2nd respondent, has submitted that irrespective of the qualification described as ‘NCO Code No.153.10’ in the Army is equivalent to civil trade, i.e. Primary School Teacher, however, such equivalence granted vide notification dated 19.1.1990 stands withdrawn by the respondent-State vide notification No.EDN-CF(i)-2/2009, dated 15.11.2011, hence, the petitioners are not eligible for appointment as JBT teachers. 4. It is in this backdrop, Ms. Ranjana Parmar, Advocate representing the petitioners has strenuously contended that the withdrawal of equivalence granted to the qualification the petitioners have, in no circumstance can be made applicable to the case of petitioners retrospectively. Learned counsel has mainly emphasised that once vide letter dated 1st April, 2011, Annexure P-5, petitioners were recommended by the 4th respondent for appointment as JBT teachers and their case even forwarded by the 3rd respondent also to 2nd respondent vide letter dated 30th May, 2011, Annexure P-6, the withdrawal of equivalence given to the qualification NCO Code 153.10, the petitioners are possessing vide notification dated 15.11.2011 cannot be made applicable to the case of the petitioners retrospectively and that in terms of sub-clause(3) of Para 20.10.3(c) of Chapter 20, Hand Book on Personnel Matters, they should have been given the offer of appointment within two weeks. The Right to Education Act, 2009 is also stated to be not applicable in this case. In support of her contention, learned counsel has placed reliance on the judgment of Apex Court in Sukhdarshan Singh etc. etc. v. State of Rajasthan, AIR 1990 SC 405 . 5. On the other hand, learned Additional Advocate General while repelling the contention raised on behalf of the petitioners has pointed out that mere clearance of their names by the 4th respondent does not confer any right of appointment as JBT teacher on the petitioners. etc. v. State of Rajasthan, AIR 1990 SC 405 . 5. On the other hand, learned Additional Advocate General while repelling the contention raised on behalf of the petitioners has pointed out that mere clearance of their names by the 4th respondent does not confer any right of appointment as JBT teacher on the petitioners. Also that there is provision of appointment as JBT teacher in favour of the candidates belonging to Ex-Servicemen category, however, those who are qualified in accordance with Recruitment and Promotion Rules. Since vide notification dated 21st July, 2010, Annexure R-1, the essential qualification prescribed for the post is qualifying successfully two years Junior Basic Teachers training course/diploma from an Institution affiliated to H.P. Board School Education and having been admitted in the course on merits on the basis of common entrance test conducted by the Board, will only be eligible for appointment as JBT teacher in Himachal Pradesh, as per the qualification prescribed in the Recruitment and Promotion Rules. 6. On carefully analyzing the rival contentions and also the record, the only issue needs adjudication is as to whether pursuant to the requisition dated 1.11.2010, Annexure P-12 (colly), sent to the 4th respondent for sponsoring the names of eligible Ex-servicemen as per Recruitment and Promotion Rules for appointment as JBT Teachers against the posts reserved for Ex-Servicemen category and consequently recommendation of the names of the petitioners vide letter dated 1st April, 2011, Annexure P-5 confers upon them any legal right to be appointed as JBT teachers against the posts reserved for Ex-Servicemen category or not. Since reliance on behalf of the petitioners has been placed on the law laid down by the Apex Court in Sukhdarshan Singh etc. etc. v. State of Rajasthan, AIR 1990 SC 405 , therefore, before coming to the point in issue, I would like to refer the same first. 7. Since reliance on behalf of the petitioners has been placed on the law laid down by the Apex Court in Sukhdarshan Singh etc. etc. v. State of Rajasthan, AIR 1990 SC 405 , therefore, before coming to the point in issue, I would like to refer the same first. 7. In the case, ibid, the Apex Court had to consider the question whether the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1962 which had earlier prescribed thereunder a diploma in Automobile Engineering or Mechanical Engineering as a minimum qualification for appointment as Motor Vehicle Inspector, the amendment in the Rules 1987 could have affected the earlier process of selection undertaken in the light of unamended Rules and could have rendered the diploma holder candidates ineligible only because after amendment of the rules they were ineligible for the post in question. As a matter of fact, in that case the selection process had already got completed, at such a stage when unamended rules were in force. Not only this, but those who have been selected were also recommended for appointment. However, the offer of appointment could not be made to them as the High Court of Karnataka in a writ petition intervened and stayed the issuance of appointments to the selected candidates. The point in issue before the Apex Court was that after vacation of stay by the High Court, the candidates selected under the earlier rules could have been given appointment or not because as per the new rules they being diploma holders were not eligible to be appointed as such. It is in these peculiar facts, it is held that the amended rules cannot be enforced retrospectively nor affect the appointments made under the old rules. The selected candidates were thus held entitled to be appointed as motor vehicle Inspectors. 8. It is in these peculiar facts, it is held that the amended rules cannot be enforced retrospectively nor affect the appointments made under the old rules. The selected candidates were thus held entitled to be appointed as motor vehicle Inspectors. 8. This Court fails to understand as to how the law laid down by the Apex Court in the case cited supra is helpful in the present case because well before sending the requisition vide Annexure P-12, dated 1.11.2010 for filling up the post of JBT teachers from amongst the eligible candidates belonging to Ex-Servicemen category as per Recruitment and Promotion Rules, the respondent-State vide notification Annexure R-1, dated 21st July, 2010 had prescribed the following qualification for the post in question:- “The Governor Himachal Pradesh is pleased to withdraw the recognition of diplomas equivalent to Junior Basic Teachers given vide this Department office order No. Cha (7)-2/79-Shiksha-Ka-Vol-II dated 15.12.1983. Further, the Governor Himachal Pradesh is 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 to 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.” 9. The petitioners admittedly are not trained JBT teachers from an institute affiliated to H.P. Board of School Education. The petitioners admittedly are not trained JBT teachers from an institute affiliated to H.P. Board of School Education. They may have the requisite qualification described ‘NCO Code 153.10’, as is apparent from Annexures P-1 and P-2 to the writ petition and the same as per these documents a qualification equivalent to Primary School Teacher in civil side, however, nothing suggesting that the said qualification was recognized one as per the Recruitment and Promotion Rules for the post of JBT teacher under the respondent-State and given equivalence vis-a-vis two years Junior Basic Teachers training course from an Institute affiliated to H.P. Board of School Education by respondents, the petitioners on the basis of their military qualification ‘NCO Code 153.10’ could have not been appointed as J.B.T. Teacher on the mere recommendation Annexure P-4 made by respondent No.4, that too, when the said respondent in reply to the writ petition has submitted that in view of the reference Annexure R-1, dated 25th November, 2011 the said 2nd respondent received from respondent, now the petitioners are not eligible to be appointed against the post in question. No doubt, in Annexure R-1 reference to notification dated 19.1.1990 regarding recognition given by the respondent-State to the Indian Naval Trade C POR (Telegraphnist/ special) for the purpose of recruitment to the subordinate posts and services under the State Government where JBT/ PET or its equivalent has been prescribed as a recruitment qualification, however, no such notification is produced to satisfy this Court that Indian Naval qualification NCO Code 153.10, the petitioners are possessing, was also recognized one and equivalent to two years JBT training course/diploma from an Institution recognized by the H.P. Board of School Education as required under the Requirement and Promotion Rules. 10. 10. If coming to the requisition, Annexure P-12 (colly), in pursuance whereof the names of the petitioners were sponsored by the 4th respondent, against the column of qualification the entry is “as per Recruitment and Promotion Rules.” Therefore, when on the date of sending the requisition Annexure P-12 the essential qualification was two years Junior Basic Teacher is training course/diploma from an Institute affiliated to the H.P. Board of School Education and the petitioner admittedly not possess any such qualification, have not rightly been offered the appointment and rather the 4th respondent vide letter dated 25.11.2011, Annexure R-1 to the reply filed on behalf of the said respondent, was requested to sponsor the names of eligible JBT Ex-Servicemen candidates against the vacancies already notified vide letter dated 15.9.2011 issued from the office of respondent, enabling thereby the said respondent to fill up the posts in accordance with the judgment of this Court dated 3.6.2011 in CWP No.2994/2008 titled as Avinash Chand SharmaVs. State of H.P. & ors. No doubt, this Court again has directed the respondents to fill up the vacancies reserved for Ex-Servicemen, if any, however, in accordance with law and strictly by adhering to the procedure as prescribed under the Rules and Regulations in force in its judgment rendered on 9.7.2010 in CWP No.2608/2008, titled as Ajeet Kumar and others Vs. State of H.P. and others (Annexure P-9). 11. The facts, thus, remain that 122 vacancies to be filled-up from amongst eligible JBT Ex-Servicemen candidates, are lying vacant, however, the 4th respondent pursuant to the requisition sent by the 3rd respondent could only sponsor five candidates, who as per the averments in reply to the writ petition stand appointed. There is a provision of 15% reservation to the eligible candidates belonging to Ex-Servicemen category, however, such reservation is for seeking admission to undergo two years JBT training course from an Institute affiliated to H.P. Board of School Education and the completion of such training successfully shall be followed by appointment. In such a situation, it does not lie in the mouth of the petitioners that they are duly qualified, however, not appointed irrespective of recommended for appointment as JBT teacher by the 4th respondent. 12. In such a situation, it does not lie in the mouth of the petitioners that they are duly qualified, however, not appointed irrespective of recommended for appointment as JBT teacher by the 4th respondent. 12. The claim of the petitioners that the respondent-State may be restrained from making appointment as JBT teachers against the posts reserved for Ex-Servicemen category from those candidates who have obtained JBT diploma from an Institute affiliated to H.P. Board of School Education, but to make such appointment only from amongst the candidates sponsored by the 4th respondent is also without any substance. 13. Now if coming to Notification No.F.No.61-03/20/2010/NCTE/(N&S) dated 23.8.2010, issued by the National Council for Teacher Education, an Academic Authority within the meaning of Section 23(1) of the RTE Act, the same lays down the minimum qualification for appointment as teacher in Classes I to VIII in a school as in clause (n) of Section 2 of the RTE Act from the date of Notification i.e. 23.8.2010. Since we are concerned with the appointment of a JBT teacher who teaches Classes I to V, the minimum qualification for appointment of such teacher under the Notification is prescribed as under:- “Minimum Qualifications: Classes I-V Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Elementary Education (by whatever name known) OR Senior Secondary (or its equivalent) with at least 45% marks and 2-year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002 OR Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor of Elementary Education (B.Ed.) OR Senior Secondary (or its equivalent) with at least 50% marks and 2-year diploma in Education (Special Education) AND (b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the guidelines Framed by the NCTE for the purpose.” 14. Now on coming into being the Right to Education Act, 2009, prescribing qualification for appointment as JBT Teacher, 10+2 with 50% marks from a recognized Board of School Education and two years JBT certificate from an Institute duly recognized by the Central/State Government and also Notification No.F.No.61-03/20/2010/NCTE/(N&S) dated 23.8.2010, issued by the National Council for Teacher Education, under Section 23(1) of the RTE Act and qualifying Teacher Eligibility Test (TET) also an essential qualification, the petitioners cannot be appointed as JBT teachers with the qualification they have. On this score, I am taking support of the judgment of this Court in Anchal Sharma and others Vs. The State of H.P. and another, CWP No.2725 of 2012, decided on 16th June, 2012, which reads as follows:- “13. It is seen from the provisions ibid that providing of TET as a minimum qualification for a person to be eligible for appointment as a teacher is to bring national standards and benchmark of teachers quality so that the standard of education can be further improved. Thus, there is a noble purpose behind prescribing TET as minimum qualification for appointment as a teacher. The RTE Act extends to whole of India except the State of Jammu & Kashmir and it has already come into force. Even the Rules notified vide Notification dated 23.8.2010 referred to hereinabove, have also been made applicable with effect from the date of Notification i.e. 23.8.2010. In such a situation, in case the respondents have failed to amend the existing Rules appropriately prescribing TET as one of the essential qualifications for appointment as JBT Teacher and to the contrary petitioners have been asked to furnish their bio data and also to appear in counse ing on 27.12.2011 vide Annexure P-16, they cannot be allowed to take benefit of such a situation and claim appointment as a matter of right against the posts of JBT Teachers particularly when the RTE Act as well as the Rules framed thereunder providing for TET as an essential qualification for appointment as such had already come into being on the day of their counselling and as regards exemption from qualifying such test (TET)by the petitioners sought by the respondents from the Central Government was declined.” 15. The present rather is a case on better footing as compared to the above cited case because now in the Recruitment and Promotion Rules also TET has also been prescribed one of the essential qualifications for appointment as JBT Teacher. 16. There is no denying to the provisions contained under sub-clause (3) of para 20.10.3(c) of Chapter 20, Hand Book on Personnel Matters, Vol.II. However, when the petitioners are not eligible in accordance with the Recruitment and Promotion Rules, how they could have been given appointment within two weeks from 1.4.2011 when they were not eligible as per Recruitment and Promotion Rules on the day when the requisition was sent to 4th respondent. 17. In view of the discussions made hereinabove, there is no merit in this writ petition and the same is accordingly dismissed. Pending application(s), if any, shall also stand disposed of. No order as to costs.