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2013 DIGILAW 1154 (PAT)

Dimple Kumari v. State Of Bihar

2013-09-20

MIHIR KUMAR JHA

body2013
JUDGMENT Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- “commanding the respondents to issue the formal letter of appointment to the petitioner for the post of warder as after passing of examination and participating in council the petitioner has been selected and empanelled for the post of warder in Kasturba Gandhi residential girl school Aandar Siwan” 3. Learned counsel for the petitioner in support of the aforesaid prayer has submitted that when the petitioner had filed her application for appointment on the post of Warden Teacher in Kasturba Gandhi Residential Girl School, Siwan on the basis of her having qualification of Sahitya Alankar which is equivalent to Intermediate in the circular of the State Government dated 11.1.1991 which has further been clarified in the letter of the Personal and Administrative Reforms Department dated 29.7.2006 that it was not open for the authority to reject the application of the petitioner holding her to be disqualified for the post of teaching. Reliance in this regard has also been placed on the judgment of the Division Bench in the case of Sanjay Kumar & Ors. Vs. State of Bihar & Ors. reported in 2009(4) PLJR 1038 . 4. In the considered opinion of this Court, the aforesaid submissions have been noted only for its being rejected. First of all, the post of Warden Teacher was advertised in the newspaper on 22.6.2012 (Annexure-1) and in the clause no.5 of the advertisement, it was specifically provided that for the post of Warden/Full Time Teacher, the minimum qualification would be Snataka (Graduation) and the trained teachers were to be given preference. The qualification laid down in the advertisement nowhere said of equivalence and, therefore, no other qualification, save and except of Graduation, was acceptable. The petitioner is admittedly not a Graduate but only a Sahitya Alankar which, according to the learned counsel for the petitioner, is equivalent to Graduation. The question, however, would be if there was no equivalent qualification mentioned in the advertisement itself, the petitioner cannot seek any parity by impressing that Sahita Alankar should be treated as equivalent to Graduation. 5. By now it is well settled that the terms of advertisement are rules of appointment and any rule cannot be varied for suiting and serving the interest of a particular candidate. 5. By now it is well settled that the terms of advertisement are rules of appointment and any rule cannot be varied for suiting and serving the interest of a particular candidate. It is this aspect of the matter which was settled by the Division Bench specifically with regard to the qualification of Sahitya Alankar in the case of Murlidhar Singh & Ors. Vs. The State of Bihar & Ors. (CWJC No. 13836 of 2012) disposed of on 27.11.2012 wherein it was held as follows:- “We are informed that the petitioners are governed by the Bihar Taken Over Elementary School Teachers Promotion Rules, 1993 (hereinafter referred to as the Rules). Clause-8 of sub-section (1) of Rule 2 of the Rules defines “Grade-6” to mean “Trained graduate Selection Scale Rs. (2200-4000)”. Clause 14 of the said sub-section defines the term “Trained graduate” to mean “those persons who are graduates or possess equivalent qualification and are trained”. Rule 5 of the said Rules provides for “eligibility”. Clause 3 of the said Rule 5 provides, “for promotion to Grade-6- Trained post-graduate and minimum 12 years of service in Grade-5, or trained graduate and minimum 18 years of service in Grade-5”. The petitioners claim that they having obtained qualification of Sahitya Alankar from Hindi Vidyapeeth, Deoghar; they possess qualification equivalent to graduate; the petitioners being trained graduates, are entitled to promotion to Grade-6. The question that precipitates is whether the qualification of Sahitya Alankar possessed by the petitioners is equivalent to graduate and that the petitioners are eligible for promotion to Grade-6. We have to refer to Articles 358 and 359 of the Bihar Education Code. Article 358 deals with “recognition of certificate from National Universities and the equivalence with respect to the degrees granted by the recognized University.” As far as Hindi Vidyapeeth, Deoghar is concerned, the only recognized qualifications are Praveshika equivalent to Secondary School Examination or Matriculation and Sahityabhushan equivalent to Intermediate. It further says that the said recognition was extended upto 31st December, 1987. Meaning thereby that since 1st January, 1988 even those qualifications are not considered equivalent for the purpose of appointment of teachers. Evidently the qualification of Sahitya Alankar is not recognized for the purpose of appointment of teachers. It further says that the said recognition was extended upto 31st December, 1987. Meaning thereby that since 1st January, 1988 even those qualifications are not considered equivalent for the purpose of appointment of teachers. Evidently the qualification of Sahitya Alankar is not recognized for the purpose of appointment of teachers. Article 359 of the Bihar Education Code makes the intention of the State Government not to engage any teacher who does not possess a Secondary School Examination certificate from a recognized Board or a degree from a statutory University. It reads thus: “Article 359. Appointment to teacher’s post forbidden on the basis of equivalence of Certificates.- In order to raise the quality of teaching in school, it has been decided by the State Government that only those persons who have passed examinations held by the Bihar School Examination Board, Central Board of Education, Secondary Examination Boards of other States or Degrees obtained from statutory Universities shall be compulsory for appointment to the post of teachers in the Primary, Middle and High Schools. (2) x x x x x x------ (3) But if teachers of Primary, Middle and High Schools pass examination equivalent to Intermediate, Gradate and Post-Graduate Degrees whose equivalence is recognized by the Personnel Department as mentioned in the preceding Article, may be promoted to higher pay scale beyond matriculation. This facility shall not be given to Middle trained teachers for getting Matric trained pay scale on the basis of equivalence. For getting Matric trained scale of pay, a Middle trained teacher must pass the Secondary School Examination from the Bihar School Examination Board.” It may be reiterated here that the qualification of Sahitya Alankar is not mentioned in the preceding article, Article 358. It is thus clear that the qualification of Sahitya Alankar secured from Hindi Vidyapeeth, Deoghar is not recognized for the purpose of appointment and promotion of the teachers. In above view of the matter, we hold that in the State of Bihar the certificate of Sahitya Alankar conferred by the Hindi Vidyapeeth, Deoghar is not recognized for the purpose of appointment or promotion of a teacher. The same view has been expressed by this Court in the matters of State of Bihar & ors. v. Mamta Kumari [2010(4) PLJR 318]; and of Poonam Sharma v. State of Bihar [ 2012(1) PLJR 226 ].” 6. The same view has been expressed by this Court in the matters of State of Bihar & ors. v. Mamta Kumari [2010(4) PLJR 318]; and of Poonam Sharma v. State of Bihar [ 2012(1) PLJR 226 ].” 6. In view of the aforesaid authoritative pronouncement specially the statutory provision contained in the Bihar Education Code as noticed by the Division Bench in the case of Murlidhar Singh (supra), this Court will have no difficulty in holding that the two circulars being relied by the petitioner for seeking equivalence of the qualification of Sahitya Alankar being same as Graduation is wholly misconceived. Article 358 of the Bihar Education Code makes it very clear that the equivalent qualification recognized by the State of Bihar will not be applicable for appointment on the post of Teacher and, therefore, when the advertisement did not even talk of any equivalence, the petitioner cannot claim appointment on the post of Warden Teacher only on the ground of Annexure-6 & 7, the two circulars dated 11.1.1991 and 29.7.2006. 7. It has also to be noted that while the circular dated 11.1.1991 talks of appointment in government service on the basis of qualification acquired from Hindi Vidyapith, Deoghar including Sahitya Alankar but the same cannot override the provision of Article 358 of the Bihar Education Code which specifically prohibits appointment on the post of Teacher on the basis of any equivalent qualification or specialized qualification by clearly laying down that such equivalence or special qualification including that of Sahitya Alankar will qualify only for promotion in case of Teachers. For the same reason, the reliance placed on the clarificatory order dated 29.7.2006 of the Personal Administrative Reforms Department will not have any significance as with regard to the appointment on the post of Warden Teacher where, as noted above, only qualification prescribed is Snatak (Graduation). 8. For the same reason, the reliance placed on the clarificatory order dated 29.7.2006 of the Personal Administrative Reforms Department will not have any significance as with regard to the appointment on the post of Warden Teacher where, as noted above, only qualification prescribed is Snatak (Graduation). 8. As with regard to the judgment of the Division Bench in the case of Sanjay Kumar (supra), this Court had considered the same aspect in its order dated 17.6.2013 in CWJC No. 18297 of 2012 wherein it was held as follows:- “The submission of the learned counsel for the petitioners that the judgment of the Division Bench in the case of Muralidhar Singh (supra) is per incurium because it has not considered the earlier Division Bench in the case of Sanjay Kumar (supra) has to be only also noted for its being rejected. The case of Sanjay Kumar (supra) had arisen out of an appointment on the post of librarian under Bihar Nagar Nikay Madhyamik Awam Uchhttar Madhyamik Shiksha (Niyojan Awam Seva Sharten) Niyamawali, 2006 and thus, the same did not any way relate to promotion on the post of B.A. trained teacher under 1993 Rules. It is well settled that a judgment would be relevant only to the issues involved therein. Thus in view of the fact that the scope of 1993 Rules was not at all considered in the case of Sanjay Kumar (supra) nor the same was one relating to promotion in B.A. trained pay scale, the later judgment of Muralidhar Singh (supra) being per incurium does not arise. The two judgments are in two different fields and merely because the issue of qualification of Sahityalankar was involved in both of them will not make the case of Sanjay Kumar (supra) applicable in the facts of the present case.” 9. The two judgments are in two different fields and merely because the issue of qualification of Sahityalankar was involved in both of them will not make the case of Sanjay Kumar (supra) applicable in the facts of the present case.” 9. As a matter of fact, from the reading of the facts of the case of the Division Bench of this Court in the case of Sanjay Kumar (supra), it would be clear that what was being considered by the Division Bench was the provision with regard to appointment on the post of Librarian in terms of the Bihar Nagar Nikaya Madhyamnik Awam Uchhttar Madhyamik Shiksha (Niyojan Awam Seva Sharten) Niyamawali, 2006 and Bihar Zila Parishad Madhyamik awam Uchhttar Madhyamik Shiksha (Niyojan awam Seva Sharten) Niyamawali, 2006 wherein for the post of Librarian, it was held that even the qualification of Sahitaya Alankar would fulfill the requirement of degree of Graduation required for the post of Libraririan. A Librarian, however, is not a Teacher and when for the Teacher, no such equivalent qualification has been considered in terms of Article 358 of the Bihar Education Code as has been also held by the Division Bench of this Court in the case of Sanjay Kumar (supra), this Court will have no difficulty in holding that the petitioner did not possess the requisite qualification for the post of Warden Teacher. 10. Before parting with, it has also to be observed that this Court will not go into the issue of equivalence by analyzing the course of study of the two qualifications. Considering this very aspect, this Court in the case of State of Bihar Vs. Mamta Kumari & Ors. reported in 2010(4) PLJR 318 referring to the earlier judgment of the Division Bench in the case of Satyendra Singh & Ors. Vs. Sanjay Kumar & Ors. reported in 2001(1)PLJR 104 had held as follows:- “26. In the opinion of this Court, the equivalence of qualification on the basis of course of studies and the examination cannot be made by this Court in exercise of power under Article 226 of the Constitution of India. Reliance in this connection may be made to the Division Bench judgment of this Court in the case of Satyendra Singh & Ors. Vs. Sanjay Kumar & Ors. reported in 2001(1)PLJR 104 wherein this Court had held as follows:- 12. Reliance in this connection may be made to the Division Bench judgment of this Court in the case of Satyendra Singh & Ors. Vs. Sanjay Kumar & Ors. reported in 2001(1)PLJR 104 wherein this Court had held as follows:- 12. Prescribing qualification for a particular post by the competent authority is a policy decision. The Government frames a policy after taking into consideration the number of facts and circumstances, expert opinion and other relevant considerations. The power of judicial review in such matters is limited. The Court can interfere only when the authorities have acted arbitrarily or in violation of the statutory or constitutional provisions. The Court does not sit as an appellate forum in disguise over the policy matter. It has no power to re-frame the policy matter and in case the policy matter is found suffering from any legal infirmities as indicated above, then the same is to be struck down and the matter is sent to the authority to consider the policy matter in accordance with law laid down. If the rules have been framed prescribing the qualification for a particular post, the Court has no power to re-frame the rules or supplement the rule by adding additional qualification for the simple reason that this is a function of the appointing and in the case of any legal lacuna the Court can only direct the appointing authority to consider the matter on the basis of the expert opinion and other relevant consideration. The Court cannot on the basis of the documents appended with the affidavit determine the equivalence or addition of qualification in the recruitment rules. 15. Thus, the law is settled that when the recruitment rules provide for a requisite qualification and the question arises as to whether any other qualification is equivalent to the qualification prescribed in the recruitment rules or not, then that question has to be decided by the competent authority and the Court cannot amend the rule or re-frame it and the Court can only direct the concerned authority to re-examine the matter specially in a technical matter, like this, after obtaining the expert’s opinion. The Court cannot take a final decision on the basis of affidavit and the opinion of the expert and decide such matter. The Court cannot take a final decision on the basis of affidavit and the opinion of the expert and decide such matter. The power of judicial review in such a matter is very limited and in case if the State Government decides the matter and the same is found to be arbitrary, mala fide then the Court will consider the same keeping in view the scope of judicial review in such matter. 18. The question involved in the case relates to filing up technical posts and as such it cannot be decided on the basis of certain documents appended with the affidavit by the Court in view of the settled law regarding the power of judicial review by the Apex Court in such matter. In that view of the matter, the learned Single Judge was not justified in deciding the question that qualification possessed by respondent no.1 was equivalent to the qualification prescribed in the Recruitment Rules inasmuch as that amounts to amending the rules and re-framing the rules which is not permissible in law…” 11. Thus, having giving anxious consideration to the aforesaid aspects, this Court must hold that the petitioner does not possess the requisite qualification for the post of Warden Teacher and she has been rightly held to be disqualified. 12. That being so, this application is wholly misconceived and is, accordingly, dismissed.