Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 616 (HP)

Pawan Kumar v. State of Himachal Pradesh

2012-09-21

RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, Judge. Since common questions of law and facts are involved in all these petitions, the same are taken up together for hearing and are being disposed of by a common judgment. 2. Petitioners have acquired their B. Ed. qualification, as per the details given herein below: Sr.No. CWP Number Year of passing B.Ed. 1. 74/2012 2004 2. 75/2012 2002 3. 76/2012 2002 4. 77/2012 2002 3. Petitioners belong to Scheduled caste category. Case of the petitioners, in a nutshell, is that they were eligible to be considered for appointment to the post of Trained Graduate Teacher (Arts), (Medical) and (Non-Medical) on batch-wise basis. According to them, 50% posts as per the Recruitment and Promotion Rules, were to be filled up by way of direct recruitment and 50% by way of batch-wise basis. Their further case is that though in the scheduled caste category, there is backlog of 916 posts, but the steps have not been taken to fill up the same on batch-wise basis. 4. Respondent-State has filed replies in all the petitions. According to the averments contained in the replies, as per Recruitment and Promotion Rules called “Himachal Pradesh, Elementary Education Department, Trained Graduate Teacher, (Class-III) (Non-Gazetted) Recruitment and Promotion Rules, 2009 notified on 22.10.2009, 25% posts are to be filled up by way of promotion (15% from J.B.T. and 10% from C&V) and 75% posts by direct recruitment on regular basis or recruitment on contract basis as the case may be (37.5% through H.P. Subordinate Staff Selection Board, Hamirpur and 37.5% by batch-wise basis). The minimum essential qualification required for Trained Graduate Teacher (Arts) is B.A. B.Ed/B.El.Ed., the minimum essential qualification for Trained Graduate Teacher (Non-Medical) is B.Sc. B.Ed/B.El. Ed. and the minimum essential qualification for Trained Graduate Teacher (Medical) is B.Sc. B.Ed/B.El. Ed. It is further averred in the reply that as per notification dated 23.8.2010 issued by the National Council for Teacher Education under section 23 (1) of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the ‘Act’ for brevity sake), petitioners are required to qualify ‘Teacher Eligibility Test’ to be conducted by the State. 5. Mr. Ramesh Sharma has vehemently argued that the old vacancies are to be filled up according to the old rules. 5. Mr. Ramesh Sharma has vehemently argued that the old vacancies are to be filled up according to the old rules. According to him, the posts have been filled up on batch-wise basis from Arts, Medical and Non-Medical streams as per Annexure P-5 from general category candidates, but the posts meant for scheduled caste/scheduled tribe categories have not been filled up. 6. Mr. Vikas Rathore, learned Deputy Advocate General has argued that principle of filling up old vacancies according to old rules applies to promotions and not direct recruitment. He then contended that the necessary approval to fill up 916 posts has been accorded by the State Government on 28.6.2012. He further contended that as per notification dated 23.8.2010, petitioners must qualify the ‘Teacher Eligibility Test. 7. I have heard the learned counsel for the parties and have perused the pleadings carefully. 8. Petitioners have acquired their B. Ed. qualification as per the details given hereinabove. According to the Recruitment and Promotion Rules notified on 22.10.2009, petitioners are also eligible to be considered for appointment as Trained Graduate Teacher (Arts), (Medical) and (Non-Medical). The Parliament has enacted Act called “The Right of Children to Free and Compulsory Education Act, 2009” and the same has been notified on 27.8.2009. According to section 3 of the Act, every child of the age of six to fourteen years has right to free and compulsory education in a neighbourhoold school till completion of elementary education. Section 7 of the Act provides the share of financial and other responsibilities of the Central and State Governments. The duties of the appropriate Government have been provided under section 8 of the Act. Section 23 reads as under: “23. (1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher. The duties of the appropriate Government have been provided under section 8 of the Act. Section 23 reads as under: “23. (1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher. (2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under subsection (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification: Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years. (3) The salary and allowances payable to, and the terms and conditions of service of, teacher shall be such as may prescribed.” 9. The National Council for Teacher Education has issued notification while exercising the powers conferred by sub-section (1) of section 23 of the Act in pursuance to notification dated 31.3.2010 on 23.8.2010. According to this notification, the minimum qualifications for a person to be eligible for appointment as a teacher in classes VI-VIII in a school referred to in clause (n) of section 2 of the Act. According to this notification, the teachers to be appointed for imparting education to classes VI-VIII, i.e. Trained Graduate Teacher must pass the Teacher Eligibility Test (TET) to be conducted by the appropriate Government in accordance with the guidelines framed for the purpose. 10. In the instant case, the necessary approval for filling up the posts on batch-wise basis from the candidates belonging to scheduled caste/scheduled tribe has been accorded by the State Government on 28.6.2012. It has come in the reply that the necessary steps are also being taken to fill up these posts. The Court is of the considered view that the teachers to be appointed to impart education between the age group of six to fourteen, besides, possessing the minimum qualifications provided under the Recruitment and Promotion Rules should also pass TET. The qualifications are to be seen on the date of consideration. The Court is of the considered view that the teachers to be appointed to impart education between the age group of six to fourteen, besides, possessing the minimum qualifications provided under the Recruitment and Promotion Rules should also pass TET. The qualifications are to be seen on the date of consideration. In order to impart quality education, they should also pass the TET to adjudge their suitability to be appointed as teachers. In the case in hand, it is reiterated that the process has been commenced by according approval by the State Government to fill up backlog of 916 posts on 28.6.2012. Thus, the notification dated 23.8.2010 shall be applicable in the present case. It cannot be said that the notification dated 23.8.2010 has been applied retrospectively. Petitioners have limited right to be considered for appointment on batch-wise basis but strictly as per law. 11. Their Lordships of the Hon’ble Supreme Court in State of M.P. and others versus Raghuveer Singh Yadav and others, (1994) 6 SCC 151 , have held that the State Government has got power to prescribe qualifications for recruitment and the Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. In this case, the gist of the case was that the Weight and Measures Department of the M.P. Government invited applications for the posts of Inspectors from eligible candidates. The qualification prescribed for eligibility was degree in Art or Commerce or Science or Engineering or Diploma in Engineering. Written examinations were held and the results were declared and interview cards were issued to successful candidates but in the meanwhile, the Government amended the rules by M.P. Standard of Weights and Measurement (Enforcement) Rules, 1989 and altered the qualification for eligibility to the said posts to degree in Science with Physics or degree in Engineering or Technology or diploma in Engineering. Pursuant to the amended rules, the Government withdrew the earlier notification and intended to proceed with the recruitment afresh under the amended rules. The candidates challenged the amended rules before the M.P. Administrative Tribunal on the ground that the rules could not be amended retrospectively. Learned M.P. Administrative Tribunal, Jabalpur directed the State of Madhya Pradesh to proceed with the selection of the candidates without taking into account the amendment made to the rules, introducing the B.Sc. as a qualification for consideration of the applications of candidates. Learned M.P. Administrative Tribunal, Jabalpur directed the State of Madhya Pradesh to proceed with the selection of the candidates without taking into account the amendment made to the rules, introducing the B.Sc. as a qualification for consideration of the applications of candidates. Their Lordships allowed the appeal and held as under: “4.For recruitment to the posts of Inspectors, Department of Weights and Measures in the State of M.P, an advertisement was issued on 27-7-1987 calling for applications from eligible candidates. The qualification prescribed for eligibility was degree in Arts or Commerce or Science or Engineering or Diploma in Engineering. It would appear that written examinations were held and results were declared on 26-8-1989. Thereafter, the Board issued interview cards to the successful candidates. In the meanwhile, the Government amended the rules by M.P. Standard of Weights and Measurement (Enforcement) Rules, 1989 in consultation with Government of India and Public Service Commission and altered the eligibility qualification for appointment to those posts by presenting degree in Science with Physics as a subject or Degree in Engineering or Technology or Diploma in Engineering. The respondents challenged the amended rules on the ground that having issued the notification for filling up the posts of Inspectors with Degree of Arts and Commerce the State had to proceed with the recruitment only as per the qualification prescribed in the notification and the subsequent amendment to the rules should not stand in the way of the Recruitment Board to consider the claims on the basis of marks secured in the examination and also interview to be held. In other words the amended rules have no retrospective operation. This contention found favour with the Tribunal and accordingly the Tribunal allowed the application. 5. It is not in dispute that Statutory Rules have been made introducing Degree in Science or Engineering or Diploma in Technology as qualifications for recruitment to the posts of Inspector of Weights and Measures. It is settled law that the State has got power to prescribe qualifications for recruitment. Here is a case that pursuant to amended Rules, the Government has withdrawn the earlier notification and wants to proceed with the recruitment afresh. It is not a case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered of their claims according to the rules then in vogue. It is not a case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered of their claims according to the rules then in vogue. The amended Rules have only prospective operation. The Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State is entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules.” 12. Their Lordships of the Hon’ble Supreme Court in Dr. K. Kamulu and another versus Dr. S. Suryaprakash Rao and others, (1997) 3 SCC 59 have held that candidate cannot acquire any vested right for being considered for promotion in such vacancies in accordance with the repealed rules in view of the policy decision, which was justifiable on the material available on the record. In this case, the Government had taken a decision in the year 1988 to amend the A.P. Animal Husbandry Service Special Rules, 1977. It had taken a conscious decision not to fill up any vacancies till the amendment. In the year 1990, a one-man Commission appointed to examine the anomalies in the Rules of 1977 submitted its report which was duly considered by the Government and ultimately the Government framed the A.P. Animal Husbandry Service Rules, 1996 repealing the 1977 Rules w.e.f. 12.6.1996. Therefore, the Government had not prepared any panel for promotion to the post of Assistant Director for the years 1995-96 in accordance with the 1977 Rules. The Administrative Tribunal, on the application of the respondent directed the Government to prepare and operate such panel. Their Lordships allowed the appeal and set aside the judgment of the Tribunal. Their Lordships have held as under: “4. The facts are, very fairly, not in dispute. Respondent No.1 both sets of appeals is a Veterinary Assistant Surgeon in A.P. Animal Husbandry Department. He filed O.A. seeking direction for preparation of a panel of candidates for promotion as Assistant Director under Rule 4 of the A.P. Subordinate Service Rules [for short, the ‘General Rules’].The Tribunal directed the respondent-Government to prepare and operate the panel for the years 1995-96 for promotion to the post of Assistant Director in the A.P. Animal Husbandry Service. He filed O.A. seeking direction for preparation of a panel of candidates for promotion as Assistant Director under Rule 4 of the A.P. Subordinate Service Rules [for short, the ‘General Rules’].The Tribunal directed the respondent-Government to prepare and operate the panel for the years 1995-96 for promotion to the post of Assistant Director in the A.P. Animal Husbandry Service. Calling that order in question, these appeals have been filed by the contesting respondents as well as by the State. 12. The same ratio was reiterated in U.O.I. & Ors. v. K.V. Vijeesh [ (1996) 3 SCC 139 , paras 5 and 7]. Thus, it could be seen that for reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies as on the relevant date. Shri H. S. Guraraja Rao, contends that this Court in Y.V. Rangaiah & Ors. v. J. Sreenivasa Rao & Ors. [ (1983) 3 SCC 284 ] had held that the existing vacancies were required to be filled up as per law prior to the date of the amended Rules. The mere fact that Rules came to be amended subsequently does not empower the Government not to consider the persons who are eligible prior to the date of appointment. It is seen that the case related to the amendment of the Rules prior to the amendment of the Rules. Two sources were available for appointment as sub-Registrar, namely, UDCs and LDCs. Subsequently, Rules came to be amended taking away the right of the LDCs for appointment as sub-Registrar. When the vacancies were not being filled up in accordance with the existing Rules, this court had pointed out that prior to the amendment of the Rules, the vacancies were existing and that the eligible candidates were required to be considered in accordance with the prevailing Rules. Therefore, the mere fact of subsequent amendment does not take away the right to be considered in accordance with the existing Rules. As proposition of law, there is no dispute and cannot be disputed. But the question is: whether the ratio in Rangaiah’s case would apply to the facts of this case? The Government therein merely amended the Rules, applied amended Rules without taking any conscious decision not to fill up the existing vacancies pending amendment of the Rules on the date the new Rules came into force. But the question is: whether the ratio in Rangaiah’s case would apply to the facts of this case? The Government therein merely amended the Rules, applied amended Rules without taking any conscious decision not to fill up the existing vacancies pending amendment of the Rules on the date the new Rules came into force. It is true, as contended by Mr. H.S. Gururaja Rao, that this Court has followed the ratio therein in many a decision and those cited by him are P. Ganeshwar Rao & Ors. v. State of A.P. & Ors. [(1988) Supp. SCC 740], P. Mahendranath v. State of Karnataka [ (1990) 1 SCC 411 ], A.A. Caljon v. Director of Education [ (1983) 3 SCC 33 ], N.T. Dev v. Karnataka PSC [ (1990) 3 SCC 157 , Ramesh Kumar Choudha & Ors. v. State of M.P. & Ors. (1996) 7 Scale 619 ]. In none of these decisions, situation which has arisen in the present case had come up for consideration. Even Rule 3 of the General Rules is not of any help to the respondent for the reason that Rule 3 contemplates making of an appointment in accordance with the existing Rules. 13. Their Lordships of the Hon’ble Supreme Court in Rajasthan Public Service Commission versus Chanan Ram and another, (1998) 4 SCC 202 have upheld the decision to fill up the vacancies of Marketing Officers, including the vacancies in the abolished cadre, by amended recruitment rules. Their Lordships have also distinguished Y.V. Rangaiah versus J. Sreenivasa Rao, (1983) 3 SCC 284 as under: “15………………In the case of Y.V. Rangaiah and others etc. v. J .Sreenivasa Rao and others [( 1983 3 SCC 284 ] a Bench of two learned Judges of this Court had to consider the question about applicability of Rule 4 (a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules which laid down the procedure for appointment by promotion to the posts in that service. Considering the said rules it was observed that when the said rules enjoined the appointing authority to prepare panels for selecting promotees yearwise in old vacancies to be filled in by promotion if panels were not prepared at appropriate time the authorities could be directed to prepare such panels and while preparing those panels for the earlier years the then existing statutory rules of recruitment had to be applied. The said decision obviously cannot apply on the facts of the present case for two reasons. Firstly, this is not a case of promotion but direct recruitment to the advertised posts and secondly the scheme of the A.P. Rules considered by the Court in that case cast a statutory duty and obligation on the part of the appointing authority to prepare panels of eligible candidates yearwise in connection with the vacancies then existing and if they had failed in that statutory duty and obligation they could legitimately be called upon to carry out that obligation and while doing so for preparing the panels for the earlier years the relevant rules then existing had to be kept in view……………….” 14. Their Lordships of the Hon’ble Supreme Court in latest judgment in Deepak Agarwal and another versus State of Uttar Pradesh and others, (2011) 6 SCC 725 have held that the rules which are prevalent at time when the consideration took place for promotion, would be applicable. Their Lordships have further held that the candidate has the right to be considered in the light of the existing rules, which implies the “rule in force” on the date the consideration took place and there is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. Their Lordships have held as under: 18. The short question that arises for consideration is as to whether the appellants were entitled to be considered for promotion on the post of Deputy Excise Commissioner under the 1983 Rules, on the vacancies, which occurred prior to the amendment in the 1983 Rules on 17th May, 1999. 19. Under the unamended 1983 Rules, the petitioners would be eligible to be considered for promotion by virtue of Rule 5(2). By virtue of the Note to Rule 8, a combined eligibility list has to be prepared by arranging the names of Assistant Excise Commissioner and Technical Officers in order of seniority as determined by the date of their substantive appointment. The appellants were, therefore, clearly in the feeder cadre of the post for promotion to the post of Deputy Excise Commissioner. Rule 7 provides that the Appointing Authority shall determine the vacancies to be filled during the course of the year and the number of vacancies. The appellants were, therefore, clearly in the feeder cadre of the post for promotion to the post of Deputy Excise Commissioner. Rule 7 provides that the Appointing Authority shall determine the vacancies to be filled during the course of the year and the number of vacancies. There is no statutory duty cast upon the State to complete the selection process within a prescribed period. Nor is there a mandate to fill up the posts within a particular time. Rather the proviso to Rule 2 enables the State to leave a particular post unfilled. 20. However, it is a matter of record that the promotions under the 1983 Rules were to be made on the basis of the criteria’s laid down in the Uttar Pradesh Government Criterion for Recruitment by Promotion Rules, 1994. Rule 4 of these Rules provided that: “Recruitments by promotion………….…..shall be made on the basis of seniority subject to the rejection of the unfit.” Consequently, the appellants would have been eligible for promotion on the basis of seniority, as determined under the Note to Rule 8. The aforesaid right for consideration to be promoted on the post of Deputy Excise Commissioner has been taken away by the Uttar Pradesh Excise Group ‘A’ Service (5th amendment) Rules, 1999. 22. It is also a matter of record that 12 vacancies existed on the post of Deputy Excise Commissioner for the year 1997-98 and 1998-99. Out of these 12 vacancies, 10 had arisen prior to 17th May, 1999 and two vacancies arose on 30th June, 1999. By virtue of the amendment in sub-rule 3 of Rule 5, the appellants have been deprived of the right to be considered for promotion on the post of Deputy Excise Commissioner. Respondents have been promoted by the impugned order dated 26th May, 1999 under the amended Rules. 23. Could the right of the appellants, to be considered under the unamended 1983 Rules be taken away? The promotions of the 12 vacancies have been made on 26th May, 1999 under the amended Rules. The High Court rejected the submissions of the appellants that the controversy herein is squarely covered by the judgment of this Court in the case of Y.V. Rangaiah (Supra). The High Court has relied on the judgment of this Court in Dr. K. Ramulu (supra). 24. The High Court rejected the submissions of the appellants that the controversy herein is squarely covered by the judgment of this Court in the case of Y.V. Rangaiah (Supra). The High Court has relied on the judgment of this Court in Dr. K. Ramulu (supra). 24. We are of the considered opinion that the judgment in Y.V. Rangaiah’s case (supra) would not be applicable in the facts and circumstances of this case. The aforesaid judgment was rendered on the interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The aforesaid Rule provided for preparation of a panel for the eligible candidates every year in the month of September. This was a statutory duty cast upon the State. The exercise was required to be conducted each year. Thereafter, only promotion orders were to be issued. However, no panel had been prepared for the year 1976. Subsequently, the rule was amended, which rendered the petitioners therein ineligible to be considered for promotion. In these circumstances, it was observed by this Court that the amendment would not be applicable to the vacancies which had arisen prior to the amendment. The vacancies which occurred prior to the amendment rules would be governed by the old rules and not the amended rules. 25. In the present case, there is no statutory duty cast upon the respondents to either prepare a year-wise panel of the eligible candidates or the selected candidates for promotion. In fact, the proviso to Rule 2 enables the State to keep any post unfilled. Therefore, clearly there is no statutory duty which the State could be mandated to perform under the applicable rules. The requirement to identify the vacancies in a year or to take a decision how many posts are to be filled under Rule 7 cannot be equated with not issuing promotion orders to candidates duly selected for promotion. In our opinion, the appellants had not acquired any right to be considered for promotion. Therefore, it is difficult to accept the submissions of Dr. Rajeev Dhawan that the vacancies, which had arisen before 17th May, 1999 had to be filled under the unamended rules. 26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the ‘rule in force’ on the date the consideration took place. Rajeev Dhawan that the vacancies, which had arisen before 17th May, 1999 had to be filled under the unamended rules. 26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the ‘rule in force’ on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah’s case (supra) lays down any particular time frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it can not be accepted that any accrued or vested right of the appellants have been taken away by the amendment. 32. Similarly, this view has been reiterated by this Court in the cases of State of M.P. & Ors. Vs. Raghuveer Singh Yadav & Ors. (supra), H.S. Grewal Vs. Union of India & Ors. (supra) and Rajasthan Public Service Commission Vs. Chanan Ram & Anr. (supra). This Court in Rajasthan Public Service Commission’s case (supra) has held that it is the rules which are prevalent at the time when the consideration took place for promotion, which would be applicable. In Para 17, it has been held as follows: “In the case of State of M.P. v. Raghuveer Singh Yadav a Bench of two learned Judges of this Court consisting of K. Ramaswamy and N. Venkatachala, JJ., had to consider the question whether the State could change a qualification for the recruitment during the process of recruitment which had not resulted into any final decision in favour of any candidate. In paragraph 5 of the Report in this connection it was observed that it is settled law that the State has got power to prescribe qualification for recruitment. In the case before the Court pursuant to the amended Rules, the Government had withdrawn the earlier notification and wanted to proceed with the recruitment afresh. In paragraph 5 of the Report in this connection it was observed that it is settled law that the State has got power to prescribe qualification for recruitment. In the case before the Court pursuant to the amended Rules, the Government had withdrawn the earlier notification and wanted to proceed with the recruitment afresh. It was held that this was not the case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered according to the rules then in vogue. The amended Rules had only prospective operation. The Government was entitled to conduct election in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State was entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules. In the case of J&K Public Service Commission v. Dr Narinder Mohan another Division Bench of two learned Judges of this Court consisting of K. Ramaswamy and N.P. Singh, JJ. considered the question of interception of recruitment process earlier undertaken by the recruiting agency. In this connection it was observed that the process of selection against existing and anticipated vacancies does not create any right to be appointed to the post which can be enforced by a mandamus. It has to be recalled that in fairness learned Senior Counsel, Shri Ganpule for the respondent-writ petitioner, stated that it is not his case that the writ petitioner should be appointed to the advertised post. All that he claimed was his right to be considered for recruitment to the advertised post as per the earlier advertisement dated 5-11-1993 Annexure P-1 and nothing more. In our view, the aforesaid limited contention also, on the facts of the present case, cannot be of any assistance to the writ petitioner as the earlier selection process itself had become infructuous and otiose on the abolition of the advertised posts, as we have seen earlier. The second point, therefore, will have to be answered in the negative in favour of the appellants and against the respondent-writ petitioner.” 15. The second point, therefore, will have to be answered in the negative in favour of the appellants and against the respondent-writ petitioner.” 15. What is backlog has been explained by their Lordships of the Hon’ble Supreme Court in State of Uttar Pradesh and others versus Sangam Nath Pandey and others, (2011) 2 SCC 105 as under: “33. A harmonious construction of sections 2(d), 3(2) and 3(5) would lead to the conclusion, as stated by the Division Bench, that only those vacancies can be declared backlog vacancies, within the reserved category, which were subject matter of advertisement but remained unfilled because of non-availability of suitable candidates, within the reserved category, after selection. It is only in respect of such vacancy that the procedure qua backlog vacancy can be adopted. Any vacancy, which has not been subjected to a complete process of selection, even though vacant, cannot be treated as a backlog vacancy. 34. Section 2(d) defines a period of 12 months commencing on 1st of July of a year as a year of recruitment for calculation of the number of vacancies. Section 3(1) gives the different percentages of vacancies, which are reserved for different categories of backward class candidates. The percentage of vacancies reserved under Section 3(1) had to be filled according to the roster mechanism provided under subsection 5 of Section 3. Section 2(d) would tend to indicate that the State was required to determine the number of available vacancies in every year of recruitment. Once the vacancies are determined, necessary requisition would have to be sent to the Public Service Commission for initiating the process of selection.” 16. In the instant case, technical speaking, 916 posts cannot be treated as backlog. Necessary approval has been accorded by the State Government to fill up these posts on 28.6.2012. These posts are to be filled up as per the existing Recruitment and Promotion Rules coupled with notification dated 23.8.2010. The principle that old vacancies must be filled up as per old rules will not apply in the instant case since it is direct recruitment and not promotion. This has been explained by the Hon’ble Supreme Court in the judgment cited hereinabove. 17. Their Lordships of the Hon’ble Supreme Court in The Ahmedabad St. The principle that old vacancies must be filled up as per old rules will not apply in the instant case since it is direct recruitment and not promotion. This has been explained by the Hon’ble Supreme Court in the judgment cited hereinabove. 17. Their Lordships of the Hon’ble Supreme Court in The Ahmedabad St. Xavier’s College society and another versus State of Gujarat and another, (1974) 1 SCC 717 have held that educational institutions are temples of learning and virtues of human intelligence are mastered and harmonized by education. Their Lordships have further held that education develops the ethos of the nation. Their Lordships have held as under: “30. Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonized by education. Where there is complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of the teacher and the taught in learning, where there is discipline: between the teacher and the taught, where both are worshipers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the, common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The, qualifications and the character of the teachers are really important. The minority institutions have the right to administer institutions. This right implies the obligation and duty of the minority institutions, to render the very best to the students. In the right of administration, checks and balances in the shape of regulatory measures are required to ensure the appointment of good teachers d their conditions of service. The right to administer is to be tempered with regulatory measures to facilitate smooth administration. The best administration will reveal no trace or colour of minority. A minority institution should shine in exemplary eclectic in the administration of the institution. The best compliment that can be paid to a minority institution is that it does not rest on or Proclaim its minority character. 31. Regulations which will serve the interest of the students, regulations which will serve the interests of the teachers are of paramount importance in good administration. Regulations in the interest of efficiency of teachers, discipline and fairness in administration are necessary for preserving harmony among affiliated institutions. 32. 31. Regulations which will serve the interest of the students, regulations which will serve the interests of the teachers are of paramount importance in good administration. Regulations in the interest of efficiency of teachers, discipline and fairness in administration are necessary for preserving harmony among affiliated institutions. 32. Education should be a great cohesive, force in developing integrity of the nation. Education develops the ethos of the nation. Regulations are, therefore, necessary to see that there are no divisive or disintegrating forces in administration.” 18. Their Lordships of the Hon’ble Supreme Court in Andhra Kesari Educational Society versus Director of School Education and others, (1989) 1 SCC 392 have held that the teacher alone could bring out the skills and intellectual capabilities of students. He is the engine of the educational system. He is a principal instrument in awakening the child to cultural values. Their Lordships have held as under: “20. Before parting with the case, we should like to add a word more. Though teaching is the last choice in the job market, the role of teachers is central to all processes of formal education. The teacher alone could bring out the skills and intellectual capabilities of students. He is the ’engine’ of the educational system. He is a principal instrument in awakening the child to cultural values. He needs to be endowed and energised with needed potential to deliver enlightened service expected of him. His quality should be such as would inspire and motivate into action the benefitter. He must keep himself abreast of ever changing conditions. He is not to perform in a wooden and unimaginative way. He must eliminate fissiparous tendencies and attitudes and infuse nobler and national ideas in younger minds. His involvement in national integration is more important, indeed indispensable. It is, therefore, needless to state that teachers should be subjected to rigorous training with rigid scrutiny of efficiency. It has greater relevance to the needs of the day. The ill trained or substandard teachers would be detrimental to our educational system; if not a punishment on our children. The Government and the University must, therefore, take care to see that inadequacy in the training of teachers is not compounded by any extraneous consideration.” 19. It has greater relevance to the needs of the day. The ill trained or substandard teachers would be detrimental to our educational system; if not a punishment on our children. The Government and the University must, therefore, take care to see that inadequacy in the training of teachers is not compounded by any extraneous consideration.” 19. Their Lordships of the Hon’ble Supreme Court in State of Maharashtra versus Vikas Sahebrao Roundale and others, (1992) 4 SCC 435 have held that teacher plays pivotal role in moulding the career, character and moral fibres and aptitude for educational excellence in impressive young children. Their Lordships have held as under: “12…………………… The teacher plays pivotal role in moulding the career, character and moral fibres and aptitude for educational excellence in impressive young children. The formal education needs proper equipping by the teachers to meet the challenges of the day to impart lessons with latest technics to the students on secular, scientific and rational outlook. A well equipped teacher could bring the needed skill and intellectual capabilities to the students in their pursuits. The teacher is adorned as Gurudevobhava, next after parents, as he is a Principal instrument to awakening the child to the cultural ethos, intellectual excellence and discipline. The teachers, therefore, must keep abreast ever changing technics, the needs of the society and to cope up with the psychological approach to the aptitudes of the children to perform that pivotal role. In short teachers need to be endowed and energised with needed potential to serve the needs of the society. The qualitative training in the training colleges or schools would inspire and motivate them into action to the benefit of the students. For equipping such trainee students in a school or a college, all facilities and equipments are absolutely necessary and institutions bereft thereof have no place to exist nor entitled to recognition. In that behalf compliance of the statutory requirements is insisted upon. Slackening the standard and judicial fiat to control the mode of education and examining system are detrimental to the efficient management of the education.........” 20. Their Lordships of the Hon’ble Supreme Court in St. In that behalf compliance of the statutory requirements is insisted upon. Slackening the standard and judicial fiat to control the mode of education and examining system are detrimental to the efficient management of the education.........” 20. Their Lordships of the Hon’ble Supreme Court in St. John’s Teachers Training Institute (for women), Madurai and others versus State of Tamil Nadu and others, (1993) 3 SCC 595 have held that dull pattern of “chalk, talk and teach” has to be replaced by a more vibrant system with improved methods of teaching to achieve qualitative excellence in teacher-education. Their Lordships have held as under: “10. The teacher education programme has to he redesigned to bring in a system of education which can prepare the student-teacher to shoulder the responsibility of imparting educating with a living dynamism and the traditional pattern of "chalk, talk and teach" method has to be replaced by more vibrant system with improved methods of reaching, to achieve qualitative excellence in teacher-education.” 21. Their Lordships of the Hon’ble Supreme Court in Adarsh Shiksha Mahavidyalaya and others versus Subhash Rahangdale and others, (2012) 2 SCC 425 have held that importance of teachers and their training has been highlighted time and again by eminent educationists and leaders of society. Their Lordships have held as under: “1. The importance of teachers and their training has been highlighted time and again by eminent educationists and leaders of society. The Courts have also laid considerable emphasis on the dire need of having qualified teachers in schools and colleges. 7. We have prefaced disposal of these appeals, which are directed against interlocutory order dated 17.12.2008 and final order dated 13.03.2009 passed by the Division Bench of the Madhya Pradesh High Court in Writ Petition No. 6146 of 2008 and connected matters by highlighting the need for well-equipped and trained teachers because in the last three decades private institutions engaged in conducting teacher training courses /programmes have indulged in brazen and bizarre exploitation of the aspirants for admission to teacher training courses and ranked commercialisation and the regulatory bodies constituted under the laws enacted by Parliament and State Legislatures have failed to stem the rot. The cases filed by these institutions, many of whom have not been granted recognition due to nonfulfilment of the conditions specified in the National Council for Teacher Education Act, 1993 (for short, ‘the 1993 Act’) and the Regulations framed thereunder and by the students who have taken admission in such institutions with the hope that at the end of the day they will be able to get favourable order by invoking sympathy of the Court, have choked the dockets of various High Courts and even this Court. The enormity of litigation in this field gives an impression that implementation of the provisions contained in the 1993 Act and the Regulations framed thereunder has been acutely deficient and the objects sought to be achieved by enacting the special legislation, namely, planned and coordinated development of the teacher education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher education system have not been fulfilled so far.” 22. Accordingly, in view of the observations and discussions made hereinabove, the writ petitions are partly allowed to the extent that the respondents are directed to fill up 916 posts from scheduled caste/scheduled tribe categories on batch-wise basis and also by ensuring that these candidates should also pass the Teacher Eligibility Test as per notification dated 23.8.2010, within a period of four months from today. Pending application(s), if any, also stands disposed of. No costs.