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2019 DIGILAW 630 (KER)

Sophia. M. v. Asha. V

2019-08-06

K.VINOD CHANDRAN, V.G.ARUN

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JUDGMENT : Vinod Chandran, J. The controversy is on the qualification of the appellant to be appointed as High School Assistant [Hindi] in the respondent-School. The 1st respondent in the appeal was the writ petitioner, who challenged the order of the Government finding the appellant to be qualified to be so appointed. There was earlier a dispute as to whether the appellant had preference in the matter of appointment to the respondent-school for reason of she being a member of the family which was in management of the school; as per its bye-laws. The issue stands settled by Exhibit P3 and P4 judgments of this Court, which found the appellant to be so entitled to be appointed on a preferential claim. This Court, however, left open the consideration as to the qualification. 2. The learned Counsel for the appellant submits that the appellant had the qualification as required in G.O.(MS) No.88/1998/G.Edn. dated 17.03.1998. As per the said Government order, “Siksha Visarad”, a title awarded by the Hindi Sahithya Sammelan, Prayag, Allahabad, was recognized as an alternative training qualification for appointment as Hindi Teachers in aided Upper Primary/High Schools. On the basis of the directions in a batch of writ petitions, the same was re-considered by G.O.(MS) No.28/2010/G.Edn. dated 09.02.2010 and the Government had reiterated and affirmed the withdrawal of such recognition. It is pointed out from Clause 6 of the G.O. dated 09.02.2010 that the withdrawal though affirmed as per Clause (i) it was only with effect from March 2006 and the appellant had acquired the Qualification prior to that. Yet again, by sub-clause (ii) of Clause 6 the title so acquired upto 31.12.2009 from N.C.T.E. approved institutions was confirmed to have recognition. Hence, the appellant's qualification has to be approved, is the contention. 3. The learned Single Judge found that the course underwent by the appellant was not from an institute recognized by the NCTE. The decision in Basic Education Board, U.P. v. Upendra Rai and Others [ (2008) 3 SCC 432 ] was distinguished. It is the case of the appellant that there was no cause for distinguishing the decision; on the specific declaration made by the Hon'ble Supreme Court. The Hon'ble Supreme Court held that the National Council for Teacher Education Act, 1993 [“NCTE Act” for brevity] would only apply to teaching institutions and the appointment herein is to an ordinary educational institution, being a High School. The Hon'ble Supreme Court held that the National Council for Teacher Education Act, 1993 [“NCTE Act” for brevity] would only apply to teaching institutions and the appointment herein is to an ordinary educational institution, being a High School. 4. We have to first look at the decision of the Hon'ble Supreme Court in Basic Education Board, U.P. In the said case, the challenge was against a Government Circular which was issued under the U.P. Basic Education (Teachers) Service Rules, 1981, which Rules were framed under a statute. The Circular provided that the post of Assistant Teachers in the Primary Schools of the Board be filled up only with candidates who are trained in U.P. Government Training Institutes and possess BTC, Hindustan Teacher's Certificate, Junior Teacher's Certificate or Certificate of Teaching. A candidate having DEd certificate awarded by DIET, Jabalpur was appointed. Earlier there was an equivalence granted by the State to the certificate issued by DIET, Jabalpur to BTC of U.P. State. This stood rescinded by the Circular dated 11.08.1997. The candidate having the qualification of DEd contended that the Teachers Training Certificate has been issued from an institute having recognition of the NCTE. Under the NCTE Act, “teacher education qualification” is defined under Section 2(m) as “a degree, diploma or certificate in teacher education awarded by a university or examining body in accordance with the provisions of this Act”. It was contended that the qualification of the candidate being one issued by an institute recognized by the NCTE, the same would suffice and the Central legislation would override the Rules promulgated by the State under a State statute. The Hon'ble Supreme Court found that NCTE Act and the U.P.Rules apply in two different fields; the former to Teachers Training Institutes and the later to the ordinary educational institutions, like Primary, Secondary and so on and so forth. It was held that the candidate definitely had to have the qualification prescribed under the U.P.Rules for the purpose of appointment as a teacher to the basic schools in U.P. The Central legislation cannot prescribe qualification for appointment to ordinary educational institutions within a State especially that provided under the NCTE Act, was the finding. 5. We bow to the aforesaid dictum laid down by the Hon'ble Supreme Court but are also in agreement with the findings of the learned Single Judge. 5. We bow to the aforesaid dictum laid down by the Hon'ble Supreme Court but are also in agreement with the findings of the learned Single Judge. We pause here to notice the submission of the learned Standing Counsel for the NCTE that the NCTE Act was amended to clarify that the Act applies to schools, school teachers and the minimum qualifications for appointment of school teachers so as to have uniform standards of teaching in schools in the country. We are, however, not concerned with the said amendment, since the appointment challenged herein is prior to that. Be that as it may, the qualification of the appellant was put to challenge, since the institution from which the appellant had acquired the Teacher's Training qualification was not recognized by the NCTE. The recognition to the said institution was acquired only in the year 2006 and the qualification acquired by the appellant was prior to that, in 2002. What is relevant for consideration is as to, even if the title “Siksha Visarad” is a permissible training qualification, whether the institution under which the appellant obtained such title is recognized by the NCTE. As we noticed, admittedly the institution from where the appellant obtained the title is not one recognized by the NCTE. 6. The learned Counsel for the appellant has a contention that the counter affidavit of the Government specifically indicates that the Government had verified the issuance of the certificate with the Hindi Sahithya Sammelan, Prayag, Allahabad and they had affirmed the same as having been obtained from the said institution in 2002 itself. The Government found the certificate to be valid and the appellant eligible to be appointed as HSA (Hindi). However, the dispute is on whether the institution in which the appellant underwent the course had a recognition under the NCTE Act, which admittedly it did not. 7. The Government found the certificate to be valid and the appellant eligible to be appointed as HSA (Hindi). However, the dispute is on whether the institution in which the appellant underwent the course had a recognition under the NCTE Act, which admittedly it did not. 7. In this context, we look at Section 17(4) of the NCTE Act, which reads as hereunder: “17(4) If an institution offers any course or training in teacher education after the coming into force of the order withdrawing recognition under sub-section (1), or where an institution offering a course or training in teacher education immediately before the appointed day fails or neglects to obtain recognition or permission under this Act, the qualification in teacher education obtained pursuant to such course or training or after undertaking a course or training in such institution, shall not be treated as a valid qualification for purposes of employment under the Central Government, any State Government or University, or in any school, college or other educational body aided by the Central Government or any State Government”. 8. By the aforesaid provision, if an institution offers any course or training in teacher education immediately before the appointed day, fails to obtain recognition under the NCTE Act, the qualification obtained pursuant to such course cannot be treated as a valid qualification for purpose of employment under the Central Government, State Government, Universities or in any school, college or other educational body which is aided by either of the Governments. The question that arises herein is the applicability of NCTE Act insofar as deciding whether the qualification acquired by the appellant after a course in an unrecognized institution would enable her to seek appointment in the aided school of the State. The answer would be an emphatic 'No'. 9. The applicability of the NCTE Act, we examine here, is on the field of teacher training institutions and not of the other educational institutions. The prescription of educational qualification, for appointment to educational institutions other than teacher training institutes, in the relevant period was unaffected by the NCTE Act; it was in the exclusive domain of the State, which is the separate field as held by the Hon'ble Supreme Court, on which NCTE Act does not apply. The prescription of educational qualification, for appointment to educational institutions other than teacher training institutes, in the relevant period was unaffected by the NCTE Act; it was in the exclusive domain of the State, which is the separate field as held by the Hon'ble Supreme Court, on which NCTE Act does not apply. But whether the teachers training qualification prescribed by the State should be from a NCTE recognized institute is the field relating to teacher training institutes, on which the NCTE Act squarely apply. 10. As declared by the Hon'ble Supreme Court, NCTE Act cannot regulate the qualifications for appointment to ordinary educational institutions other than Teachers Training Institutes, which will be regulated by the Statute and Rules brought out by the State. However, those qualifications as prescribed by the State has to be obtained from a Teachers Training Institute recognized by the NCTE; which is the mandate of Section 17(4). The NCTE Act provides a prohibition insofar as the appointment to public employment as teachers when the training qualification is acquired from an unrecognized institution. The question arising herein is specifically on the field of Teachers Training Institutions and whether the Teachers Training Institution in which the appellant undertook the course was recognized or not. The recognition having not been obtained by the institute in which the course was undertaken by the appellant, definitely she cannot seek public employment as a teacher in any educational body. 11. We then notice the Government order dated 17.03.1998 as relied on by the appellant. The Government Order directs the title “Siksha Visarad” awarded by Hindi Sahithya Sammelan, Prayag, Allahabad to be recognized as an alternative training qualification for appointment as Hindi Teachers in aided Upper Primary/High Schools in the State. Here, we have to notice the qualification as prescribed under the Kerala Education Rules, 1959, the statutory Rule framed by the State under the Kerala Education Act, 1958. Here, we have to notice the qualification as prescribed under the Kerala Education Rules, 1959, the statutory Rule framed by the State under the Kerala Education Act, 1958. Chapter XXXI Rule 2(iv) is extracted hereunder: “2(iv) High School Assistant (Hindi):-The candidate shall possess any one of the academic qualifications and a training qualification as specified below: A. ACADEMIC QUALIFICATION A degree in Hindi conferred or recognised by the Universities in Kerala; or A title of Oriental learning in Hindi awarded or recognised by the Universities in Kerala; or Praveen of the Dakshina Bharat Hindi Prachar Sabha, Madras with a pass in the S.S.L.C.Examination conducted by the Commissioner for Government Examinations, Kerala, or its equivalent; or Sahithyacharya of Kerala Hindi Prachar Sabha with a pass in S.S.L.C.Examination conducted by the Commissioner for Government Examinations, Kerala or its equivalent. B. TRAINING QUALIFICATIONS B.Ed/B.T/L.T. conferred or recognised by the Universities in Kerala or Diploma or Certificate of Language Teachers' Training in Hindi issued by the commissioner for government Examinations, Kerala; or Diploma in Hindi Teachers Training issued by the Commissioner for Government Examinations, Kerala; or A pass in any one of the following examinations of the Kendriya Hindi Sikshan Mandal Agra namely: (i) Hindi Siksha Praven; (ii) Hindi Sikshan Parangath; (iii) Hindi Sikshan Nishnat Explanation I :- Persons who have successfully undergone Pracharak Diploma of the Dakshina Bharat Hindi Prachar Sabha upto and including the academic Year 1969-70 shall be considered to possess the requisite training qualification. Explanation II :- Persons who have successfully undergone the Course in Hindi Teachers Diploma course of the Regional Hindi Training College Gandhigram Madura during the academic year 1967-68 or prior to that year shall be considered to possess the requisite training qualifications. Explanation III :- Persons who have successfully undergone the Acharya course of the Kerala Hindi Prachar Sabha upto and including the academic year 1969-70 shall be considered to possess the requisite training qualification”. We specifically refer to the mandatory nature of the Rule by way of employment of the words “shall possess any one of the academic qualifications and a training qualification”. “Siksha Visarad” is not a qualification as recognized under the Rules. There is no amendment caused to the Rules; though we notice that the Government Order of 17.03.1998 is one issued by order of the Governor. “Siksha Visarad” is not a qualification as recognized under the Rules. There is no amendment caused to the Rules; though we notice that the Government Order of 17.03.1998 is one issued by order of the Governor. The Government Order at best can be considered to be one issued under Article 162 of the Constitution; which, however, cannot run counter to the statutory rule made by the executive Government. We are fortified in taking such view by a decision of the Division Bench in State of Kerala v. V.P.Bepathu Amma [W.A.No.1030 of 2014 dated 12.07.2016]. An executive order cannot run counter or contrary to a statutory rule. In such circumstances, we do not find any way to place reliance on the Government Order as relied on by the State and the appellant. 12. We also notice that the earlier Government Order [dated 17.03.1998] was withdrawn and again on consideration the withdrawal was affirmed; which, however, had these conditions. Clause 6 of the Government order of 09.02.2010 is extracted hereunder: “6. Government have examined all aspects with regards to the withdrawal of recognition of 'Siksha Visard' title of Hindi Sahithya Sammelan, Allahabad based on the facts narrated above and are pleased to order as follows: (i) Recognition given to 'Siksha Visard' title of Hindi Sahthya Sammelan, Allahabad as an alternative qualification for appointment as Language Teacher (Hindi)/High School Assistant (Hindi) in the Primary and High school sections of aided and Government Schools is withdrawn w.e.f. March 2006 itself as ordered in the Government Order read as 2nd paper above. (ii) The 'Siksha Visard' title of Hindi Sahthya Sammelan, Allahabad acquired upto 31/12/09 from N.C.T.E. approved institutions will have recognition in exemption to the above condition”. Clause (i) withdraws the exemption only from March 2006 but clause (ii) approves that title from recognised institutions acquired upto 31.12.2009 to have recognition for the purpose of exemption. The learned Counsel strenuously contented that the title from approved institutions is a condition only if it is acquired between March 2006 and 31.12.2009. The appellant has acquired the qualification prior to 2006 and hence is entitled to the exemption. The primary fallacy in the said argument is that clause (i) withdraws the recognition to the title “Siksha Visard” as an alternative qualification for appointment, as Teacher in HINDI in the primary and high school section from March 2006. The appellant has acquired the qualification prior to 2006 and hence is entitled to the exemption. The primary fallacy in the said argument is that clause (i) withdraws the recognition to the title “Siksha Visard” as an alternative qualification for appointment, as Teacher in HINDI in the primary and high school section from March 2006. It is not as if the title obtained prior to 2006 is recognized. Only appointments made prior to 2006 on the strength of that title, as an alternate qualification, would not be rendered invalid. The vacancy here arose on 12.12.2006, after the withdrawal of recognition. There can be no alternate qualification claimed on that date of appointment since the recognition was withdrawn with effect from March 2006. The G.O. of 2010 dated 09.02.2010 also permitted recognition of that title as an alternate qualification if obtained from an approved institution till 31.12.2009. The appellant's institute was not one approved. The argument raised lacks substance and is devoid of merit. 13. In this context, we have to observe that the appellant has not produced any certificate before this court to establish her case. The qualifications as asserted by the appellant under Chapter XXXI is 'Praveen' of the Dakshina Bharat Hindi Prachar Sabha, Madras. The qualification required under Chapter XXXI Rule 2 is that of 'Praveen' with a pass in the S.S.L.C.Examination conducted by the Commissioner for Government Examinations, Kerala. For the training qualification, the appellant relies on the qualification acquired by her as recognized by a Government Order. Neither has the appellant produced her Secondary School Leaving Certificate nor has she produced the certificate for training qualification. We rely on Bharat Singh v. State of Haryana [ (1988) 4 SCC 534 ] para 13, wherein the Hon'ble Supreme Court has observed as follows: “13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between the pleading under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellant is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit”. We find that the appellant has failed to establish her case by producing the very documents evidencing the qualifications she assert in the counter affidavit. For all the reasons stated above, we do not find any way to interfere with the judgment of the learned Single Judge. We dismiss the appeal, leaving the parties to suffer their respective costs.