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2018 DIGILAW 1463 (ALL)

Devendra Kumar v. State of U. P.

2018-07-03

SANGEETA CHANDRA

body2018
ORDER : Sangeeta Chandra, J. Heard learned counsel for the petitioner and learned Standing Counsel appearing for the respondent Nos. 1 to 3 and Mr. Mahesh Sharma, learned counsel for the respondent Nos. 4 and 5. 2. This writ petition has been filed by the petitioner challenging the order dated 13.11.2007 passed by respondent No. 2 i.e. Additional Director of Education, Region-I, Meerut and praying for a mandamus directing the respondents to regularize the petitioner and not to restrain him from discharging his duties and pay his salary month to month. 3. It is the case of the petitioner that he was initially appointed as Assistant Teacher on 21.07.1989 in Baba Mohan Ram Bharat Singh Junior High School. His appointment was granted approval by the then Basic Shiksha Adhikari, Ghaziabad on 17.11.1989. At the time of his initial appointment, he possessed a degree of Shiksha Shashtri granted by Varanasi Sanskrit Vishwavidhyalay, but when he came to know that the said degree of Shiksha Shashtri is not recognized, he acquired B.Ed. Degree in 1991 from Maharishi Dayanand University, Rohtak through Correspondence Method. Till May, 2007, he received salary but when the school was reopened after the summer vacations, he was served with a letter dated 29.06.2007 sent by respondent No. 2 restraining the petitioner from teaching in the Institution. The petitioner made a representation that he had been working for 18 years, and his appointment had also been duly approved by the District Basic Shiksha Adhikari on 17.11.1989. When no orders were passed, the petitioner approached this Court in Writ Petition No. 33341 of 2007 (Devendra Kumar vs. State of U.P. and 4 others), which was disposed of on 24.07.2007 with a direction to the respondent No. 2 to consider and decide the representation. 4. Respondent No. 2 by the impugned order dated 13.11.2007 has rejected the case of the petitioner on the ground that the petitioner did not possess the requisite qualification at the time of his initial appointment as per the 1978 Rules. 5. Learned counsel for the petitioner has submitted that the Basic Shiksha Adhikari having approved his appointment in 1989, it was not open for the respondents to disapprove the same in 2007 and assert that he was not possessed the requisite qualification at the time of his initial appointment. The petitioner was working for almost 20 years when the said order was passed. 6. The petitioner was working for almost 20 years when the said order was passed. 6. Learned counsel for the petitioner has relied upon a judgment of this Court rendered by Co-ordinate Bench of this Court in Kalindi Pandey vs State of U.P. and others, reported in 2013 (11) ADJ 705 , where this Court was dealing with the similarly situated petitioner, who had been working for the past 14 years as Assistant Teacher in a Junior High School. The appointment of the writ petitioner therein had initially been approved by the Basic Shiksha Adhikari on 06.01.1996. On examination of information sent by the School to the office of the District Basic Education Officer in July, 2010, the Management was asked to terminate the services of the petitioner as she did not possess the requisite training qualification of BTC, HTC, etc., as provided in the 1978 Rules. 7. This Court considered in detail the U.P. Junior High School Basic Teachers Service Rules, 1978 and Rule 4(1) thereof, wherein minimum qualification for appointment as teacher was prescribed including not only the educational qualification, but training qualification of either HTC or JTC or BTC or CT. The appointment of the writ petitioner had been granted approval by the District Basic Education Officer on 06.01.1996, and in 2010 all of a sudden, the Authorities woke up and came to the conclusion that the petitioner did not possess the requisite qualification at the time of initial appointment, and a direction was issued by the District Basic Education Officer on 15.07.2010 to the Management to terminate the services of the petitioner. 8. This Court considered the judgments rendered by two Division Benches of this Court in Special Appeal No. 815 of 2000 (Sanjay Kumar Tyagi vs State of U.P. and others) decided on 23.12.2004 and Division Bench judgment rendered in Special Appeal (Defective) No. 123 of 2009 (District Basic Education Officer, District Mau vs Jagdamba Singh) decided on 27.07.2010, with regard to question whether services of the writ petitioner could have been terminated after a period of 14 years for the reason that the petitioner did not possess the Teachers Training Course Certificate at the time of appointment. This Court took into account the observations made by the Division Bench of this Court in Jagdamba Singh (supra) and of Hon'ble Supreme Court in Ram Sarup vs State of Haryana and others, reported in AIR 1978 SC 1536 and Dr. M.S. Mudhol vs S.D. Halegkar, reported in 1993 (3) SCC 591 , to observe that it would be undesirable to disturb a teacher, who had been working for the past several years on the ground that he was not eligible at the time of his appointment. 9. Learned Standing Counsel on the other hand has relied upon a judgment of Hon'ble Supreme Court rendered in Ashok Kumar Sharma and others vs Chander Shekhar and another, reported in AIR 1997 SC 439. 10. In the aforesaid case, the Hon'ble Supreme Court was considering a question relating to eligibility, where applications were called for prescribing a particular date as a last date for filing the applications. The Court held that the eligibility of the candidates shall have to be judged with reference to the last date of filing application, and a person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. 11. Learned counsel for the respondents has also pointed out a judgment rendered by the Hon'ble Supreme Court in Rakesh Kumar Sharma vs Govt. Of NCT of Delhi and others, reported in 2013 (11) SCC 58 . The Hon'ble Supreme Court observed that a person who possessed the qualifications only on the date of declaration of result, but not on the last date of submission of applications cannot be considered as a qualified. The Supreme Court observed that there may be several other persons/large number of candidates, who were not eligible as per the requirement of Rules/advertisement on the last date of submission of applications, and since they did not possess such required eligibility, they would not have filed their applications. Granting any benefit to the appellant would mean denial of equal opportunity to such candidates. The appointment of the appellant was held to be illegal as at the time of last date of submission of application, he did not possess the requisite qualification. Granting any benefit to the appellant would mean denial of equal opportunity to such candidates. The appointment of the appellant was held to be illegal as at the time of last date of submission of application, he did not possess the requisite qualification. The Supreme Court further observed that the extraordinary power of the Court should not be used to defeat the rights of others or to create arbitrariness but can be used only in an appropriate case to advance the cause of justice. 12. Learned counsel for the respondents has also pointed out that at the time when the petitioner's appointment was approved on 17.11.1989 by the District Basic Education Officer, the Institution in question was not an aided Institution. It came under the Grant-in-Aid list only in 2006, and when the requisite documents of all teachers working in the said Institution as per the Manager's Return were examined carefully, the discrepancy in the appointment of the petitioner was observed since the petitioner was initially not possessing the requisite qualifications as per the Basic Teachers Service Rules 1978, he could not have been appointed at all. A B.Ed. Degree is not equivalent to BTC as has been held by this Court and also by the Hon'ble Supreme Court in Yogesh Kumar and others vs Government of NCT Delhi and others, reported in 2003 (3) SCC 548 . The Legislature intended that training qualification of BTC or JTC or HTC alone or Certificate Training Course should be treated as requisite Training Qualification, and therefore, such mention was made in Rule 4(1) of the said Rules of 1978. 13. There may be some legal force in the arguments made by the learned counsel for the respondents, however, this Court cannot lose sight of the fact that the petitioner has been working in the Institution since 1989, and when the order dated 13.11.2007 was passed rejecting his claim, he approached this Court in the present writ petition, and was also granted interim order on 10.01.2008. 14. In view of the law settled by the Supreme Court in Dr. M.S. Mudhol (supra) and in Kalindi Pandey (supra) of Division Bench of this Court, this Court does not find it appropriate to set aside the appointment of the petitioner at this stage for want of requisite training qualification at the time of his initial appointment in 1989. 15. In view of the law settled by the Supreme Court in Dr. M.S. Mudhol (supra) and in Kalindi Pandey (supra) of Division Bench of this Court, this Court does not find it appropriate to set aside the appointment of the petitioner at this stage for want of requisite training qualification at the time of his initial appointment in 1989. 15. This Court is also aware of the Full Bench decision as cited by the learned counsel for the respondents in Ram Surat Yadav and others, vs State of U.P. and others, reported in 2014 (1) ADJ 1 (FB), where this Court has observed that the NCTE Act came in 1993 and the Right of Children to Free and Compulsory Education Act was promulgated in 2009 and the NCTE Act was amendment thereafter in 2011. The minimum qualifications have now been amended, but amendment of such minimum qualifications at this stage would not relate back to a period prior to promulgation of the Right of Children to Compulsory Education Act, 2009. 16. The petitioner's case has to be considered in view of the law settled by this Court in Kalindi Pandey (supra). 17. The order dated 13.11.2007 stands quashed. 18. The petitioner shall be entitled to all consequential benefits. 19. The writ petition is allowed.