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2013 DIGILAW 1157 (MP)

Reena Kumari v. State of M. P.

2013-09-24

M.C.GARG, SHANTANU KEMKAR

body2013
JUDGMENT Garg, J. -- 1. All these appeals which have been filed by the appellants under section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 are assailing the judgment of learned Single Judge passed in Writ Petition No.2676/2013 and other connected matters whereby the writ petitions filed by the appellants were dismissed by common judgment. 2. The appellants filed the writ appeals assailing the order of the State Government in having not selected them for the post of Samvida Shala Shikshak III on the ground that they were not holding requisite qualifications. 3. According to the appellants, learned Single Judge has not appreciated that the grounds taken by the State Government in having not selected them was that they were not having requisite qualification, which was contrary to the selection norms as per the notification issued by the Central Government. 4. It has been submitted on behalf of the appellants that the order passed in writ petition is not sustainable for the reason that the learned Single Judge has failed to appreciate that the qualifications which were being possessed by the appellants was in accordance with the notification issued by the Central Government whereas the appellants have not been considered for selection on the basis of notification issued by the State Government which is not in accordance with the rules framed by the Central Government and thus are not sustainable. 5. We may observed here that the basic issue which was raised on behalf of the appellants is that the qualifications which they possess was in accordance with the notification issued by NCET, but was not in accordance with the notification of the State Government. Having not challenged the faults in the notifications issued by the State Government, the appellants cannot take benefit of the notification issued by the Central Government. At the outset, it may be observed that the rules framed by the State Government in the circular dated 15th of February, 2013 have not been assailed as ultra virus. 6. In the impugned order dated 14th of May, 2013, learned Single Judge has considered all the submissions made on behalf of the appellants. It will be relevant to take note of paragraphs No.6 to 13 of the impugned order passed by learned Single Judge in Writ Petition No.2676/2013, which are reproduced hereunder for the sake of reference : “6. 6. In the impugned order dated 14th of May, 2013, learned Single Judge has considered all the submissions made on behalf of the appellants. It will be relevant to take note of paragraphs No.6 to 13 of the impugned order passed by learned Single Judge in Writ Petition No.2676/2013, which are reproduced hereunder for the sake of reference : “6. In the above amendment, eligibility conditions in serial No.1 relates to Samvida Shala Shikshak grade I, serial No.2 relates to Samvida Shala Shikshak grade II and serial No.3 relates to Samvida Shala Shikshak grade III. It is worth noting that the aforesaid amendment was incorporated prior to the issuance of the advertisement for recruitment and submission of applications by the petitioners. 7. Some of the clauses of above amendment require B.Ed./D.Ed. in accordance with the NCTE (Recognition, Norms and Procedure) Regulations, 2002 (for short “2002 Regulation”) which have been framed in exercise of the powers conferred by the NCTE Act and which prescribe the minimum eligibility condition for Elementary Teacher Education Programme. The minimum eligibility originally prescribed in 2002 Regulation has been amended vide Notification dated 30.11.2006. 8. The petitioners have attacked the circular dated 15.2.2013 raising the plea that by the said circular the prescribed minimum qualification under the Rules has been changed but by reading the said circular along with Rules of 2005 as amended on 27.6.2011 and the NCTE Regulations of 2002 as amended by Notification dated 30.11.2006, it is found that the said circular is nothing but reiteration of the eligibility conditions which have been prescribed in the amended Rules of 2005. Thus, the argument of the petitioners’ that by the circular dated 15.2.2013 the prescribed eligibility conditions have been changed subsequent to the issuance of advertisement and submission of application form, is devoid of any merit and is accordingly rejected. 9. Counsel for the petitioners while raising a challenge to the circular dated 15.2.2013 have also raised the plea that the administrative instructions will not prevail over the statutory rules. The said argument has no force in view of the conclusion already reached by this Court that the Circular dated 15.2.2013 is not in conflict with the statutory rules but it is in conformity with the same. 10. The said argument has no force in view of the conclusion already reached by this Court that the Circular dated 15.2.2013 is not in conflict with the statutory rules but it is in conformity with the same. 10. Learned counsel appearing for the petitioners have next contended that the Central Government exercising the powers conferred by Right of Children to Free and Compulsory Education Act, 2009 (for short “Act of 2009”) has issued the Notifications dated 23.8.2010 and 25.8.2010 (as amended by the Notification dated 29.7.2011) prescribing the minimum qualification for the person eligible for appointment as teacher in Class I to 8 in a school referred to in section 2(n) of the Act of 2009, therefore, the State is precluded from providing any other minimum qualification. Such a submission also cannot be accepted because the petitioners have not challenged the validity of amended Rules of 2005, which have the statutory force having been framed in exercise of power conferred by the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993. Even otherwise, it is found that by the above notifications issued under Act of 2009 the minimum qualification have been prescribed and none of the qualification prescribed by the amended Rules of 2005 is lower than the said minimum qualifications. In substance the qualifications which have been prescribed in the Rules of 2005 are inconformity with the minimum qualifications which have been laid down by the Notification issued under the Act of 2009. 11. Learned counsel appearing for the petitioners have further contended that once the petitioners were permitted to participate in the selection process and they have qualified the written examination, then the State is estopped from excluding them from the selection process on the ground that they do not possess the requisite qualification. Learned counsel for the State has pointed out the selection procedure and has disclosed that along with the online application forms, which were submitted by the petitioners in pursuance to the advertisement, no documents were required to be submitted. The petitioners were allowed to appear in the written examination on the basis of their online application forms and after the declaration of result of written examination, their original documents were scrutinized and those who did not possess the requisite qualification, their names have not been included in the list of the eligible candidates. The petitioners were allowed to appear in the written examination on the basis of their online application forms and after the declaration of result of written examination, their original documents were scrutinized and those who did not possess the requisite qualification, their names have not been included in the list of the eligible candidates. Thus, it is found that the plea of estoppel raised by the petitioners has no substance. Even otherwise, the petitioners who do not possess the requisite minimum qualification, have no right of appointment on the post in question. 12. In the matter of Smt. Sanyogita Thakur and others v. State of Madhya Pradesh and others, in Writ Petition No.4529/2013, vide order dated 21.3.2013, the learned Single Judge in the Principal Seat at Jabalpur while examining the issue of eligibility of Samvida Shala Shikshak Grade III has held as under : “6. I have considered the respective submissions made by learned counsel for the parties. Madhya Pradesh Samvida Shala Shikshak (Employment and Conditions of Contract) Rules, 2005 came into force with effect from 6.5.2005. Thereafter the Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009 which came into force w.e.f. 26.8.2009. Section 23(1) of the aforesaid Act provides that 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. Under section 23(2) of the 2009 Act, the National Council for Teacher Education has been authorised by the Central Government. By notification dated 23.8.2010 the National Council for Teacher Education in exercise of power under section 23(1) of the 2009 Act prescribed the qualifications. By an order dated 11.2.2011 the National Council for Teacher Education issued guidelines for conducting the Teacher Eligibility Test. The Government submitted a proposal to the Central Government on 3.5.2011 under section 23(2) of the 2009 Act. Thereafter the Central Government under section 23(2) relaxed the minimum qualifications prescribed by the National Council of Teacher Education under section 23(1) of the 2009 Act vide notification dated 25.8.2010 in respect of the State of Madhya Pradesh and the requirement of possessing two year Diploma in Elementary Education was relaxed. Thereafter the Central Government under section 23(2) relaxed the minimum qualifications prescribed by the National Council of Teacher Education under section 23(1) of the 2009 Act vide notification dated 25.8.2010 in respect of the State of Madhya Pradesh and the requirement of possessing two year Diploma in Elementary Education was relaxed. The State Government thereafter amended the 2005 Rules by notification dated 27.6.2011 and prescribed the eligibility conditions for recruitment on the post of Samvida Shala Shikshak Grade I, II and III in conformity with the conditions prescribed by the National Council for Teacher Education as required under the notification dated 21.11.2011 issued by the Central Government under section 23(2) of the 2009 Act. Thereafter an advertisement was issued for Teacher Eligibility Test by which the applications were invited from 27.9.2011 to 27.10.2011. The examination was held on 22.1.2012 and the result was declared on 31.7.2012 which was modified on 4.8.2012. Thus, it is apparent that the Rules were amended prior to issuance of the advertisement by notification dated 27.6.2011. The advertisement itself was issued in accordance with the amended Rules. Therefore, the contention of learned counsel for the petitioners that after the process of recruitment, the Rules have been amended and eligibility criteria has been changed, cannot be accepted.” 13. Somewhat similar contentions were raised by the similarly situated petitioners before the Principal Seat at Jabalpur in Writ Petition No.6559/2013 in the matter of Radha Thakur v. State of M.P. and others, decided on 26.4.2013 and the learned Single Judge at Jabalpur rejecting the said contention has held as under : “The controversy involved in the writ petition is with respect to the qualification for appointment on the post of Samvida Shala Shikshak. The issue in this respect has been considered by this Court in various writ petitions, namely, Writ Petition No.6686/2013 (Ashish Kumar Soni v. State of M.P. and others, decided on 15.4.2013) and Writ Petition No.6945/2013 (Vinod Morle v. State of M.P. and others, decided on 18.4.2013). This Court has further considered whether the essential qualification prescribed in case of Samvida Shala Shikshak could be relaxed or not and such a consideration has been done in Writ Petition No.6646/2013 (Anand Patel v. State of M.P. and others, decided on 18.4.2013). This Court has further considered whether the essential qualification prescribed in case of Samvida Shala Shikshak could be relaxed or not and such a consideration has been done in Writ Petition No.6646/2013 (Anand Patel v. State of M.P. and others, decided on 18.4.2013). This Court after dealing with such qualifications prescribed as also various provisions of relevant laws has reached to the conclusion that those who are not fulfilling the qualification prescribed under the amended Rules, are not to be called for counselling and no such writ, direction or mandamus could be issued to the respondents. The writ petitions have been dismissed by this Court following the law laid down in several cases by the apex Court, namely, P.M. Latha and another v. State of Kerala and others [ (2003)3 SCC 541 ] and Yogesh Kumar and others v. Government of NCT Delhi and others [ (2003)3 SCC 548 ]. This Court has further considered the law laid down by the apex Court in the case of Registrar, Rajiv Gandhi University of Health Sciences, Bangalore v. Hemlatha and others [ (2012)8 SCC 568 ], with respect to rounding up of marks and has reached to the conclusion that this is also not permissible if it is not prescribed. This Court further has reached to the conclusion that no writ, order or direction could be issued to the respondents authorities in terms of an undertaking made before this Court unless specific eventualities as postulated in sub-section (2) of section 23 of the Right of Children to Free and Compulsory Education Act, 2009 are available. In view of the aforesaid, while upholding the action of respondents, no case is made out to grant any relief to the petitioner in the present case. The writ petition fails and is hereby dismissed.” 7. It may be observed here that no judgment contrary to the aforesaid two judgments of this Court or that of the Hon’ble Supreme Court, distinguishing or setting aside the aforesaid judgments have been produced before us. 8. In the course of argument, learned counsel appearing for the appellants fairly conceded that the appellants did not possess minimum qualification as is required in accordance with the notification published by the State Government (Annexure P-5). This is also so stated in paras 6 and 7 of the aforesaid writ appeal. The said paragraphs are reproduced hereunder for the sake of reference : “6. This is also so stated in paras 6 and 7 of the aforesaid writ appeal. The said paragraphs are reproduced hereunder for the sake of reference : “6. That the M.P. Panchayat and Gramin Vikas has issued notification dated 27.6.2011 prior to amended notification of NCTE on 29.7.2011 which does not provide relaxation to graduate+D.Ed and B.Ed for the post of Samvida Shala Shikshak III in respect of minimum percentage of marks. Latest amended notification of NCTE dated 29.7.2011 entitle graduate+D.Ed irrespective of 45% of 50% in graduation/post-graduation to be eligible for Samvida Shala Shikshak Grade III. But in M.P. (Amended) Samvida Shala Shikshak recruitment rules does not prescribed above such relaxation to the incumbent who is graduate+D.Ed or B.Ed the copy of Gazette 27.7.2011 is marked as Annexure A-5. 7. That the circular of M.P. State School Education dated 15.2.2013 does not prescribe relaxation to candidate who is graduate+D.Ed or B.Ed for the post of Samvida Shala Shikshak III, it does not contain reference of NCTE Notification 30.11.2006, 27.9.2007 and 31.8.2009 NCTE has prescribed minimum of 45% in graduation+D.Ed or B.Ed between 27.9.2007 and 31.8.2009. The above circular is issued arbitrarily in which they have prescribed 45% in H.S. School Certification Examination/Graduation before commencement of NCTE Reg 2002. The copy of the circular 15.2.2013 is marked as Annexure A-6.” 9. In view of the aforesaid, when the notification issued by the State Government which provides higher qualification and the appellants do not possess those qualifications, the judgment of the learned Single Judge cannot be faulted with. 10. We may also take support from the order passed by another learned Single Judge in Writ Petition No.8336/2013 (Kailash Chandra Gehlot v. State of M.P. and others) on 25.7.2013, wherein the learned Single Judge has not found any substance in the similar arguments made in that case. The relevant discussions in the said order is reproduced hereunder for the sake of reference : “The petitioner before this Court who is having less than 50% marks in the Higher Secondary Examination has filed this present writ petition for issuance of an appropriate writ, order or direction directing the respondents to consider the candidature of the petitioner for the post of Samvida Shala Shikshak Class III. The petitioner has infact challenged the order dated 15.4.2013 passed by the District Education Officer, by which the petitioner’s candidature has been turned down as he is having less than 50% marks in the Higher Secondary examination. Learned Counsel for the petitioner has vehemently argued before this Court that the Government of India in exercise of powers conferred under the Right of Children to Free and Compulsory Education Act, 2009 has relaxed this condition of 50% marks, vide notification dated 21.11.2011 and it is obligatory on the part of the State Government to comply with the direction issued by the Government of India dated 21.11.2001 and, therefore, by virtue of relaxation the petitioner is certainly entitled to participate in the examination and also for consequential appointment. On the other hand, learned Government Advocate has argued before this Court that appointment to the post of Samvida Shala Shikshak Class III in the state of Madhya Pradesh is governed under the Recruitment Rules Samvida Shala Shikshak (Employment and Conditions of Contract) Rules 2005 and the Rules have been amended and notified on 27.6.2011. It has been stated that as per the Recruitment Rules, a person is required to have minimum 50% marks in the examination i.e. Higher Secondary for the post of Samvida Shala Shikshak Class III and unless and until Recruitment Rules are amended, the petitioner who is having 49% marks cannot be considered for appointment. Learned counsel has placed reliance upon the judgment passed in Writ Petition No.10072/2012 dated 14.5.2013 (Badrilal and others v. State of M.P. and others) and his contention is that by virtue of the aforesaid judgment as the petitioner does not have 50% marks in the Higher Secondary Examination is certainly not at all entitled to be called for counselling. This Court is of the considered opinion that once the statutory Recruitment Rules are in existence, this Court does not have the power to direct the respondents to call the petitioner for counselling de hors the statutory provisions contained under the Recruitment Rules. This Court is of the considered opinion tht so long as the recruitment rules are in existence, the question of permitting the petitioner to participate in the counselling, even though the petitioner is having less than 50% marks does not arise. The admission declined.” 11. This Court is of the considered opinion tht so long as the recruitment rules are in existence, the question of permitting the petitioner to participate in the counselling, even though the petitioner is having less than 50% marks does not arise. The admission declined.” 11. In view of the aforesaid, we do not find any substance in the present writ appeals filed by the appellants. Consequently, the same are dismissed, with no order as to costs. A copy of this judgment be placed in all the connected writ appeals.