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Madhya Pradesh High Court · body

2013 DIGILAW 672 (MP)

Anil Gupta v. State of M. P.

2013-06-10

J.K.MAHESHWARI

body2013
JUDGMENT The petitioners before this Court are having the degree of Bachelor of Education (B.Ed.) and they had appeared in Samvida Shala Shikshak (Grade III) eligibility test conducted in the year 2011 and were declared qualified. The case of the petitioners is that during the counselling the petitioners were disqualified on the ground that they were having B.Ed. degree while as per the subsequent amendment the qualification of D.Ed. was required. When the matter is taken up today, counsel appearing for both the parties have submitted that the controversy involved in the present Writ Petition has already been decided by the order dated 21-3-2013 passed in W.P. No. 4529/2013 [reported in 2013 (2) MPLJ 206 ] in the matter of Smt. Sanyogita Thakur and others v. State of Madhya Pradesh and others by the principal seat at Jabalpur and they have further submitted that in the light of the said judgment a number of Writ Petitions have already been disposed of by this Court and have referred to the order dated 10-4-2013 passed in W.P. No. 4717/2013 Sursingh Mourya v. State of M.P. and three others and other connected Writ Petitions. 2. The learned Single Judge in the matter of Smt. Sanyogita Thakur (supra) has disposed of the Writ Petition by holding as under -- “5. While inviting the attention of this Court to clause 7.2 of the advertisement issued for Teacher Eligibility Test it is contended that as per aforesaid clause separate merit lists of the candidates who possess the requisite qualification and the candidates who do not possess the requisite qualification were prepared. In view of the relaxation granted by the Central Government in exercise of power under section 23(1) of the 2009 Act vide Notification dated 21-11-2011 even the candidates who do not have requisite qualification were allowed to appear in the Teacher Eligibility Test. In view of the aforesaid notification the State Government has to give priority in the matter of appointment to the eligible candidates who have requisite qualifications as per the Notification dated 25-8-2010 issued by the National Council of Teacher Education and thereafter to consider other candidates as per relaxation granted by the aforesaid notification. It is also submitted that there are more than 49,000 posts of Samvida Shala Shikshak Grade-III, out of which only 25,000 candidates having requisite qualifications have applied for counselling. It is also submitted that there are more than 49,000 posts of Samvida Shala Shikshak Grade-III, out of which only 25,000 candidates having requisite qualifications have applied for counselling. Remaining 24,000 posts of Samvida Shala Shikshak Grade-III shall be filled up from the eligible candidates under the Notification dated 21-11-2011 issued by the Central Government. Learned Additional Advocate General further submitted that the State Government shall obtain extension from the Central Government to fill up the remaining posts of Samvida Shala Shikshak Grade-III and shall hold a separate counselling for the candidates who are eligible in view of the Notification dated 21-11-2011 issued by the Central Government and shall prepare a separate merit list based on inter se merit of such candidates. 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 section23(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 for 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 for 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. 7. At this stage, I may advert to the contention raised on behalf of the petitioners that they cannot be declared ineligible on account of possessing over qualifications. It is well settled in law that recruitment in public services should be strictly in accordance with the terms of the advertisement and recruitment rules, if any, If a deviation is made from the Rules, the same allows entry of ineligible persons and it deprives many others who could not have competed for the posts. It is equally well settled that fixation of qualification for a particular post is a matter of recruitment policy. (See : 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 . Admittedly, in terms of the advertisement issued for Teacher Eligibility Test, the B.Ed. was not prescribed qualification. Samvida Shala Shikshaks Grade-III have to impart education to the students of class I to class VIII. In D.Ed. Admittedly, in terms of the advertisement issued for Teacher Eligibility Test, the B.Ed. was not prescribed qualification. Samvida Shala Shikshaks Grade-III have to impart education to the students of class I to class VIII. In D.Ed. course the teachers are specially trained to teach small children in primary classes whereas in B.Ed., course the training is imparted to the teachers to teach the students of higher classes. Therefore, it cannot be said that teachers who hold the B.Ed, degree are suitable for appointment as teachers to impart education to the students of class I to class VIII. It is open for the recruiting authority to frame a policy of recruitment and to decide the source from which such recruitment is to be made. It is also not disputed that the petitioners did not have the requisite qualification therefore, the contention that merely because the petitioners are overqualified and, therefore, they cannot be excluded from the consideration, cannot be accepted. 8. Paragraph 2 of Notification dated 21-11-2011 provides for conditions subject to which relaxation was granted. The relevant extract of the aforesaid paragraph reads as under: 2. The relaxation granted under this notification shall be valid for a period up to the 31st March, 2013, subject to fulfilment of following conditions, namely, (i) The State Government of Madhya Pradesh shall conduct the Teacher Eligibility Test as specified in the said Notification as amended from time to time, of the Council in accordance with the Guidelines for conducting Teacher Eligibility Test, dated the 11th February, 2011 issued by the Council and those persons who pass the Teacher Eligibility Test be considered for appointment as a teacher in classes I to VIII; (ii) the State Government and other school managements shall amend the recruitment rules to provide for the minimum qualifications required for appointment of teachers laid down by the said notification and the amended notification of the Council; (iii) the State Government shall in the matter of appointment give priority to those eligible candidates who passes the minimum qualifications specified in the said Notification dated the 25th August, 2010 as amended from time to time and thereafter, consider other candidates eligible with the relaxed qualifications under this notification. In pursuance of the aforesaid notification the candidates who have passed the Higher Secondary Examination and had B.Ed., degrees were permitted to appear in the examination. In pursuance of the aforesaid notification the candidates who have passed the Higher Secondary Examination and had B.Ed., degrees were permitted to appear in the examination. However, the State Government under the said notification is under an obligation to provide preference to the candidates having requisite qualification. In view of the preceding analysis, candidates having B.Ed., degree do not have any right to claim parity with the candidates having requisite qualification and to seek participation in counselling along with the candidates having requisite qualification. 9. At this stage, I may advert to the statement which has been made by learned Additional Advocate General. Learned Advocate General submitted that in all there are more than 49,000 posts of Samvida Shala Shikshak Grade-III. In response to the counselling, only 25,000 candidates who are having the Diploma in Education have applied for the post in question. It is further submitted that the State Government would seek extension from the Central Government for filling up the remaining posts of the teachers from the candidates having qualification as per Notification dated 21-11-2011 issued by the Central Government as period of relaxation is expiring on 31-3-2013 and a separate counselling shall be held for the aforesaid candidates after obtaining the permission from the Central Government. 10. In view of the aforesaid submission made by learned Additional Advocate General and taking into account clause 10 inserted in Schedule II to the Rules which provides that State Government shall initially appoint such teachers as Samvida Shala Shikshak who are having minimum qualification and in case trained persons are not available the State Government may appoint untrained persons on the post of Samvida Shala Shikshak as per the notification issued under section 23(2) of the Right of Children to Free and Compulsory Education Act, 2009, I deem it appropriate to direct that proposal for extension of time for filling up the posts of Samvida Shala Shikshak Grade-III from the candidates having qualifications as per Notification dated 21-11-2011 issued by the Central Government shall be forwarded by the State Government to the Central Government within a period of ten days from the date of receipt of certified copy of this order. This Court has no doubt that on receipt of the proposal for extension of period by the State Government, the Central Government shall take a decision on the aforesaid proposal expeditiously. This Court has no doubt that on receipt of the proposal for extension of period by the State Government, the Central Government shall take a decision on the aforesaid proposal expeditiously. As soon as the order of extension is received by the State Government, thereafter the State Government shall initiate the process of counselling for recruitment for remaining posts of Samvida Shala Shikshak Grade-III within a period of three weeks. After completion of the counselling a select list based on the merits shall be prepared and appointment letters shall be issued to the eligible candidates. 11. With the aforesaid directions, the writ petition is disposed of.” 3. Some of the petitioners have raised the issue, since they belong to SC/ST/OBC/PH category, therefore, in terms of the Notification dated 29-7-2011, they are entitled for relaxation of 5% marks obtained in the Higher Secondary or in requisite degree/diploma. A perusal of the notification indicates that the relaxation of the marks have been given in the qualifying marks. By the amendment dated 27-6-2011 in Rule 6(5) of Samvida Shala Shikshak (Employment and Conditions of Contract) Rules, 2005 has been amended wherein percentage of the marks to qualify the eligibility examination even for SC/ST/OBC/PH category has been reduced to 50% though for unreserved category and other candidates, it is 60%. Thus relaxation of 5% marks to qualify the eligibility examination has already been granted. Learned counsel is unable to show any provision specifying the relaxation in the Rules of 2005 in the Higher Secondary Examination, therefore, the candidates are not entitled to get benefit of the said notification. The aforesaid view has been taken by this Court in W.P. No. 10072/2012 (Badrilal and another v. State of M.P.) decided on 14-5-2013 [reported in 2013 (4) MPLJ 623 ]. However, this Court is bound by the view taken by the co-ordinate Bench, therefore, the benefit of the relaxation cannot be directed. 4. In view of the submissions made by learned counsel for parties, the present writ petitions are disposed of with a direction to the respondents to extend the same benefit to the present petitioners which has been extended to the petitioner in the case of Smt. Sanyogita Thakur (supra). The directions issued in the matter of Smt. Sanyogita Thakur (supra) will apply mutatis mutandis to the case of the present petitioners also. With the aforesaid observations, this petition stands disposed of.