Order Reserved on 21/5/2010.
Delivered on 09/7/2010
Civil Misc. Writ Petition No.3733 of 2009.
Jitendra Kumar Soni & Ors ...........Petitioners
Versus
State of U.P. & Anr ...........Respondents.
With
Civil Misc. Writ Petition No.2614 of 2009.
Kamal Kumar .................Petitioner
Vs.
State of U.P. & Ors. ...........Respondents.
With
Civil Misc. Writ Petition No.64587 of 2008.
Dinesh Yadav .................Petitioner
Vs.
State of U.P. & Anr. ...........Respondents.
With
Civil Misc. Writ Petition No.6782 of 2009.
Smt. Karuna .................Petitioner
Vs.
State of U.P. & Ors. ...........Respondents.
With
Civil Misc. Writ Petition No.56505 of 2009.
Pramod Kumar Sharma .................Petitioner
Vs.
State of U.P. & Ors. ...........Respondents.
With
Civil Misc. Writ Petition No.64394 of 2009.
Kamlesh Kumar & Anr .................Petitioners
Vs.
State of U.P. & Ors. ...........Respondents.
With
Civil Misc. Writ Petition No.64528 of 2009.
Lalit Kumar & Anr .................Petitioners
2
Vs.
State of U.P. & Ors. ...........Respondents.
With
Civil Misc. Writ Petition No.64641 of 2009.
Raj Bahadur Singh .................Petitioner
Vs.
State of U.P. & Ors. ...........Respondents.
With
Civil Misc. Writ Petition No.66679 of 2009.
Satendra Kumar .................Petitioner
Vs.
State of U.P. & Ors. ...........Respondents.
With
Civil Misc. Writ Petition No.57325 of 2009.
Ajay Kumar Tripathi .................Petitioner
Vs.
State of U.P. & Ors. ...........Respondents.
With
Civil Misc. Writ Petition No.56860 of 2009.
Krishna Pratap Singh Chandel .................Petitioner
Vs.
State of U.P. & Anr. ...........Respondents.
With
Civil Misc. Writ Petition No.49959 of 2009.
Prasiddh Narayan Singh .................Petitioner
Vs.
Principal District Institution of Education
and Training Maharajganj & Ors. ...........Respondents.
With
Civil Misc. Writ Petition No.49216 of 2009.
Alka Singh .................Petitioner
Vs.
State of U.P. & Ors. ...........Respondents.
3
:::::::::::
Hon'ble Ashok Bhushan, J.
Hon’ble Arun Tandon, J.
(Delivered by Hon’ble Ashok Bhushan, J)
These writ petitions have been placed before this Division Bench
by order of Hon’ble The Chief Justice dated 06/11/2009, on a reference
made by learned Single Judge referring following two questions to be
examined by a larger Bench.
“(a) Whether the degree obtained by an student from
an institution/university established by law, situate at
a place outside the State of Uttar Pradesh but duly
recognized by the N.C.T.E. can be refused
acceptance as valid qualification for being admitted
to B.T.C. Course-2008 by the State.
(b) Whether the classification under the Government
Order between the degree of B.Ed. obtained from other
State being valid for admission to B.T.C. Course-2008,
while the degree of C.P.Ed, B.P.Ed, and D.P.Ed similarly
obtained from the institutions situate outside the State of
Uttar Pradesh being invalid for considered for admission
to B.T.C. Course-2008 is arbitrary and without any
reasonable rational and therefore hit by Article 14 of the
Constitution of India.”
We have heard Shri Ashok Khare, learned Senior Counsel
assisted by Shri Vishnu Shanker Gupta for the petitioners and other
learned counsels appearing in the connected writ petitions and Shri V.K.
Singh, learned Additional Advocate General for the State respondents.
Brief facts necessary for appreciating the issues are: The State of
U.P. vide Government Order dated 10/7/2007 decided to impart Special
B.T.C. Training-2007 to 60,000 candidates in accordance with the terms
and conditions as mentioned in the Government Order dated 10/7/2007.
The said Government Order was partially modified by Government
Order dated 13/7/2007. Under the aforesaid Government Order,
candidates who have passed B.Ed alone were eligible for consideration.
An order dated 31/7/2007, was passed by the learned Single Judge
(Hon’ble Ashok Bhushan,J) in Writ Petition No.33428 of 2007, Arvind
Kumar & Anr. Vs. State of U.P. & Ors, directing for permitting the
4
candidates who have passed Diploma in Physical Education, Bachelors
Degree in Physical Education and L.T. Training and a consequential
order was issued by State of U.P. in this regard. Various admissions
were made in pursuance of the Special BTC Training-2007. For certain
remaining vacancies a Special BTC Training-2008 (Special
Recruitment) was initiated by Government Order dated 14/11/2008.
Principal, of District Institute of Education and Training issued
advertisement inviting applications for Special BTC Course-2008.
Educational qualification is prescribed in paragraph 1 of the
advertisement dated 23/11/2008, which required apart from Bachelors
Degree granted by a duly established University and recognised by
University Grants Commission and B.Ed from institution duly recognised
by the National Council of Teachers Education hereinafter referred to as
(“NCTE”) or regular candidates who have obtained degrees of L.T.,
B.P.Ed, C.P.Ed and D.P.Ed from institutions within the State of U.P.
The relevant extract of qualifications is as follows:
‘kSf{kd ;ksX;rk%
¼1½ Hkkjr esa fof/k }kjk LFkkfir rFkk fo’ofo|ky; vuqnku vk;ksx ls
ekU;rk izkIr fo’ofo|ky;ksa ls Lukrd ijh{kk mRrh.kZ,oa
¼2½ jk”Vz~h; v/;kid f’k{kk ifj”kn ls ekU;rk izkIr laLFkkxr ch],M]
izf’k{k.k mRrh.kZ vH;FkhZ
vFkokizn’s k esa lapkfyr egkfo|ky;ksa] fo’ofo|ky;ksa] izf’k{k.k egkfo|ky;ksa ls
jk”Vz~h; v/;kid f’k{kk ifj”kn ls ekU;rk izkIr
,y]Vh]@ch]ih],M]@Mh]ih]Mh]@lh]ih]Mh] laLFkkxr izf’k{k.k mRrh.kZ
vH;FkhZAThe petitioners No. 1 to 8 in Writ Petition No.3733 of 2009 have
passed their Bachelor of Physical Education Degree from Shri Krishna
College of Education run by Jamuna Prasad Nayak B.Ed Shiksha
Prasar Samiti, Chhattarpur, M.P. Petitioner No. 9 has passed his
Bachelor of Physical Education from Mansa College, Kohka Road,
Kurund, (Bhilai), affiliated to Pt. Ravi Shanker Shukla University, Raipur.
Petitioner no. 10 has passed his Physical Education Degree from Raja
Rao Bahadur Singh Physical Education Degree College, Basari,
Chattarpur, M.P. a College affiliated to Dr. Hari Singh Gour
Vishwavidyalaya, Sagar. The Colleges from where the B.P.Ed degrees
5
are obtained are approved institution of NCTE.
In view of the conditions as quoted above, the petitioners stand
excluded for consideration for Special BTC Training Course, 2008. The
petitioners have prayed for quashing the aforesaid condition and mandamus
commanding the respondents to consider the candidatures of the petitioners.
The reliefs claimed in the Writ Petition No. 3733/2009 are as
follows:
“(1). a writ, order or direction in the nature of
certiorari quashing the condition of having obtained
Bachelor of Physical Education Degree from an
institution within the State of Uttar Pradesh for
admission to Special B.T.C. Training Course 2008
(Special Recruitment).
(2) a writ, order or direction of suitable nature
commanding the respondents to consider the
candidatures of the petitioners for admission to
Special B.T.C. Training Course 2008 (Special
Recruitment) treating the Bachelor of Physical
Education Degree obtained by the petitioners as
sufficient for treating the petitioners as eligible for
consideration.”
Shri Ashok Khare, learned Senior Advocate appearing for the
petitioners in support of the writ petition contended that the condition
specially Clause 2 sub-clause 3 of the Government Order dated
14/11/2008, confining the eligibility only to the candidates who have
passed B.P.Ed, C.P.Ed and D.P.Ed from the institution of U.P. is
unsustainable since the degrees obtained by the petitioners are also
degrees from the recognised NCTE institutions and cannot be
discriminated with the degrees obtained by the candidates from the
institution within the State of U.P. It is submitted by the learned counsel
for the petitioners that the candidates having B.Ed degrees from any
place including from the institution outside the State of U.P. are fully
eligible for consideration for admission in Special BTC Course-2008,
whereas the candidates who have obtained B.P.Ed, C.P.Ed and D.P.Ed
from the institution outside the State of U.P. have been disqualified
which is clearly arbitrary and discriminatory.
Learned counsel for the petitioners submitted that no
6
discrimination can be made in the degrees granted by the institution
duly recognised by the NCTE.
Learned counsel for the petitioners has placed reliance on the
judgments of Apex Court in Dr. B.L. Asawa Vs. State of Rajasthan & Ors,
AIR 1982 SC 933; Dr. Pradeep Jain & Ors. Vs. Union of India & Ors, AIR
1984 SC, 1420; Dr. Sachin D. Kulkarni & Ors. State of Maharashtra & Ors,
(1989) 2 SCC 250 and State of U.P. Vs. Budh Singh (D) By Lrs, (1997) 2
SCC 181.
Shri V.K. Singh, learned Additional Advocate General appearing
for the respondents submitted that the issues raised in the writ petition
are fully covered by the judgment of the Apex Court in U.P. Basic
Education Board Vs. Upendra Rai, (2008) 1 UPLBEC 641 and Full
Bench Judgment in Writ Petition No. 2856/2004, Rajeshwar Singh Vs.
State of U.P. decided on 15/12/2009. It is submitted that the Division
Bench of this Court in Upendra Rai Vs. State of U.P.. 2000 (2) UPLBEC
1340 had quashed the advertisement dated 28/4/1999 and the Circular
dated 11/8/1997, by which advertisement for appointment to the post of
Assistant Teacher in Junior Basic Schools the candidates who have
obtained BTC, Hindustani Teachers Certificate, Junior Teachers
Certificates and Teachers Certificate from the institution run by the
Government of U.P. were only treated to be eligible.
In another Division Bench judgement of this Court in Vijai Kumar
Kushwaha & Ors. Vs. State of U.P. & Ors (2003) 3 UPLBEC 2211, similar
restrictions imposed by the Government Order dated 09/1/1998 for
admission in BTC Course was upheld. It is submitted that the Division
Bench judgment in Upendra Rai’s case (supra) has been disapproved by
the Apex Court in U.P. Basic Education Board (supra), hence the
restrictions have been upheld and further more, the similar issue which was
referred to Full Bench has been answered by the Full Bench following the
judgment of the Apex Court in U.P. Basic Education Board (supra), hence
no fault can be found with the restrictions imposed by the Government
Order dated 14/11/2008 and he petitioners are not entitled for any relief.
Elaborating his submission, learned counsel for the petitioners
7
contends that although in view of the judgment of the Apex Court in Dr.
Pradeep Jain’s case (supra) it is permissible to give preference to the
candidates who have obtained training from the institution within the State of
U.P., but neither cent percent reservation can be made in their favour nor
there can be total prohibition on the candidates who have obtained
equivalent degrees from the institution outside the State of U.P. It is
submitted that the impugned restrictions are violative of Article 14 of the
Constitution of India. Referring to the judgment of the Apex Court in U.P.
Basic Education Board’s case (supra) learned counsel for the petitioners
contends that the issues which were considered and decided in the said
case were different issues. It is submitted that in U.P. Basic Education
Board’s case (supra), the Apex Court had occasion to consider the statutory
rules providing for appointment on the post of Assistant Master or Assistant
Mistress in Junior Basic School in Rule 8 of U.P. Basic Education (Teachers
Service Rules, 1981). It is submitted that Rule 8, provides for appointment
of Teaches and the training. Qualification mentioned in the Rule were of
Basic Teachers Certificate (BTC), Hindustani Teachers Certificate, Junior
Teachers Certificate or Certificate of Teaching or any other training course
recognised by the Government equivalent thereto.
According to the above rule, the Government was competent to
declare any training certificate equivalent to this. The Court also noticed
the Government Circular dated 11/8/1997, by which equivalence granted to
various training certificate earlier was rescinded. The Apex Court held that
Rule 8 operated in different field and was not over ridden by NCTE Act,
1993 nor any Regulation framed thereunder. The advertisement and the
circular was thus found violative.
Following was held by the Apex Court in paragraphs 14, 15 and 19 of
the said judgment which is as follows:
“14. The respondent admittedly got appointment after the
Circular dated 11.8.1997 and hence this Circular applies to
him. Admittedly, the respondent does not possess the
qualification mentioned in the said Circular. He does not
either possess BTC, Hindustani Teaching Certificate, JCT
or Certificate of Teaching. The B.Ed Certificate is no
longer regarded as equivalent to BTC after the Circular
8dated 11.8.1997. This was a policy decision of the U.P.
Government, and it is well settled that the Court cannot
interfere with policy decisions of the Government unless it
is in violation of some statutory or constitutional provision.
Hence, we are of the opinion that the respondent was not
entitled to be appointed as Assistant Master of a Junior
Basic School of U.P.
15. Grant of equivalence and/or revocation of
equivalence is an administrative decision which is in
the sole discretion of the concerned authority, and the
Court has nothing to do with such matters. The matter
of equivalence is decided by experts appointed by the
Government, and the Court does not have expertise
in such matters. Hence it should exercise judicial
restraint and not interfere in it.
19. A perusal of the NCTE Act shows that this Act was
made to regulate the teachers training system and the
teachers training institutes in the country. It may be
mentioned that there are two types of educational
institutions: (1) ordinary education institutions like primary
schools, high schools, intermediate colleges and
universities and (2) teachers’ training institutes. The NCTE
Act only deals with the second category of institutions viz.
teachers’ training institutes. It has nothing to do with the
ordinary educational institutions referred to above. Hence,
the qualification for appointment as teacher in the ordinary
educational institutions like the primary schools, cannot be
prescribed under the NCTE Act, and the essential
qualifications are prescribed by the local Acts and Rules in
each State. In U.P. the essential qualification for
appointment as a primary schools teacher in a Junior Basic
School is prescribed by Rule 8 of the U.P. Basic Education
(Teachers) Service Rules, 1981 which have been framed
under the U.P. Basic Education Act, 1971. A person who
does not have the qualification mentioned in Rule 8 of the
aforesaid Rules cannot validly be appointed as an
Assistant Master or Assistant Mistress in a Junior Basic
School.”
The Apex Court in the above case was not considering any such
restriction either in the rule or in the advertisement as has been raised in the
present case. The judgment of Vijai Kumar Kushwahas case (supra) which
has been relied on by Shri V.K. Singh, learned Additional Advocate General
for the State respondents supports his submissions.
In Vijai Kumar Kushwahas case (supra) the Division Bench was
considering the similar issue of restrictions imposed by the Government
Order dated 09/1/1998 for admission in the BTC Course.
Following was laid down in paragraphs 3,4,5 and 6 in Vijai Kumar
9
Kushwahas case (supra).
“3.Admittedly, the appellants have obtained B.Ed degrees
from the State of Madhya Pradesh and not from any
College/University within the State of Uttar Pradesh. The
appellants have contended that such a restriction imposed
by the said Government Order is wholly arbitrary as the
degrees obtained by the appellants are duly recognized
under the N.C.T.E. Act and as such they were also eligible
for applying against the said advertisement dated
8.3.1998.
4. Sri Ranvijai Singh, Learned Standing Counsel
appearing for the respondents has submitted that the
validity of the Government Order dated 1998 has
already been upheld in another Writ Petition No.29107
of 1999, Alok Kumar Pandey Vs.State of U.P. decided
on 19.7.1999. It has also been contended that the
decision of the Government to impart condensed
training of B.T.C. to only those candidates who are
covered under the said Government Order, was a
policy decision of the State Government and could not
be interfered with or challenged in view of the decision
of the Apex Court in the case of English Medium
Students Parents Association Vs. State of Karnataka
and others, (1994) 1 SCC 550.
5. The learned Single Judge dismissed the writ
petition holding that it was open to the State
Government to make classification in its Government
Order and the Government restricted the scope of
appointment only to those candidates who obtained
degrees from within the State of Uttar Pradesh. Such
restriction was held to be a valid restriction and could
not be said to be violative of Articles 14, 16 and 21 of
the Constitution of India.
6. Having heard learned Counsel for the parties
and on perusal of the record, we are of the view that
the impugned judgment and order dated 27.8.1999
does not suffer from any infirmity. No ground has been
made out for interference in appeal. We agree with the
learned Single Judge in upholding the vires of the said
Government Order dated 9.1.1998 and also the
selections made in accordance with the said
Government Order and also the advertisement dated
8.3.1998 issued by the respondents.”
Vijai Kumar Kushwahas case (supra) was not a subject matter of
consideration before the Apex Court in U.P. Basic Education Board’s case
(supra). Much emphasis has been laid down by Shri V.K. Singh, learned
10
Additional Advocate General on the Full Bench judgment in Rajeshwar Singh’s
case (supra). Although in Rajeshwar Singh’s case (supra) divergent views
were taken note of in Upendra Rai’s case and Vijai Kumar Kushwahas case
(supra), but the Full Bench after noticing the Apex Court judgment in U.P.
Basic Education Board’s case (supra) did not enter into any further
adjudication of controversy. It is useful to extract the relevant portion of the
Full Bench judgment dated 15/12/2009 which is as follows:
“When these two conflicting judgments of Division Bench of
this Court (supra) were placed before the Single Judge, the
controversy was referred to Full Bench by order dated
16.7.2004. The operative portion of term of reference is “In
Upendra Rai’s case, reported in 2000 (2) UPLBEC 1340,
the Division Bench of this Court has held that the
restrictions imposed by the State Government are not valid
and B.T.C. certificate for appointment on the post on
Assistant Teacher issued by an institute situated outside
the State of U.P. but recognized by the N.C.E.R.T. is valid.
The other Division Bench’s judgement of this Court
reported in (2003) 3 UPLBEC 2211 in Vijai Kumar
Kushwaha’s case, upheld the government rights as well as
Government Order which provides that the State has got
right not to admit a candidate for appointment as Assistant
Teacher in case the training certificate is provided by an
institute situated out the State of U.P. The proposition of
law as per Vijai Kumar Kushwaha’s case have been
reiterated in Lalit Kumar Dixit’s case reported in (2004) 1
UPLBEC 754 which Division Bench out of two lay down the
correct law.”
During the course of hearing, the judgment of the Apex
Court, reported in (2008) 3 SCC 432 Basic Education
Board, U.P. versus Upendra Rai and others, has been
cited, in which the Supreme Court has set aside the
judgment of Upendra Rai (supra) passed by a Division
Bench of this Court and upheld the finding of other Division
Bench judgment in the case of Vijai Kumar Kushwaha
(supra).
In view of above, the term of reference referred to this Full
Bench seems to be settled by Hon’ble Supreme Court in
the recent judgment referred hereinabove.
Keeping in view the fact that the Supreme Court has
settled the law with regard to terms of reference, no further
adjudication of controversy is required by this Full Bench.
The reference is answered accordingly.
Let the paper book be sent back to the Bench concerned to
decide the writ petition in accordance with law.”
A perusal of the aforesaid judgment indicates that the Full Bench
after noticing the Apex Court judgment in U.P. Basic Education Board’s
case (supra) observed that “Supreme Court has set-aside the
judgment of Upendra Rai (supra) passed by a Division Bench of
11
this Court and upheld the finding of other Division Bench
judgment in the case of Vijai Kumar Kushwaha (supra).”
A perusal of the entire judgment of the Supreme Court in U.P. Basic
Education Board’s case (supra) indicates that the Division Bench judgment
of Vijai Kumar Kushwahas case (supra) was neither referred to nor
considered. The issue which had arisen in Vijai Kumar Kushwahas’ case
(supra) was with regard to restriction for admission in Special BTC Course
which was not a subject matter of issue in Upendra Rais case (supra). The
observation of the Full Bench in the case of Rajeshwar Singh’s case (supra)
that the Supreme Court in U.P. Basic Education Board’s case has upheld
the finding of Division Bench in Vijai Kumar Kushwahas case has been
made under some mistake, since as a matter of fact Vijai Kumar
Kushwahas case (supra) was neither considered nor approved by the
Supreme Court in U.P. Basic Education Board’s case (supra), hence the
issues which were considered in the Vijai Kumar Kushwahas case (supra),
cannot be said to be approved either the Apex Court in U.P. Basic
Education Board’s case (supra), or by the Full Bench in Rajeswar Singh’s
case (supra). The Full Bench in fact, clearly observed that in view of the
Supreme Court judgment in U.P. Basic Education Board’s case (supra), no
further adjudication of controversy is required. Full Bench, thus did not enter
into any issues, hence it cannot be said that the Full Bench has laid down
any ratio to the effect that the State Government is competent to put any
restriction by Government Order referred above, disqualifying the
candidates who have passed B.P.Ed, C.P.Ed, and D.P.Ed from any
recognised institution outside the State of U.P. In fact, the submission of the
learned counsel for the petitioners is that Vijai Kumar Kushwahas case
(supra) does not lay down the correct law.
It is submitted that the degrees granted by the recognised institution
cannot be discriminated. Relying on the judgments of Dr. Padeep Jain’s
case (supra) and Dr. Sachin D. Kulkarni (supra) learned counsel for the
petitioners submitted that institutional preference can be given only with
regard to certain percentage of seats and in event it is 100% reservation,
12
same is violative of Article 14 of the Constitution of India. The Division
Bench judgment in Vijai Kumar Kushwahas case (supra) has taken the
view that such restrictions are valid. We sitting in a co-ordinate Bench do
not find it appropriate to enter into correctness or otherwise of the view
which has been taken in Vijai Kumar Kushwahas case (supra). Correctness
of Vijai Kumar Kushwahas case (supra) needs to be examined by a Larger
Bench, specially in view of the submissions made by the learned counsel for
the petitioners on the strength of the judgments of the Apex Court in Dr.
B.L. Asawa Vs. State of Rajasthan; Dr. Pradeep Jain & Ors. Vs. Union of
India & Ors, 1420; Dr. Sachin D. Kulkarni & Ors. State of Maharashtra &
Ors, and State of U.P. Vs. Budh Singh (D) By Lrs, (1997) (supra).
Thus, we are of the view that the above two questions which
have been referred to cannot be said to be covered either by the Full
Bench decision in the case of Rajeshwar Singh’s case (supra) or by
the Supreme Court judgment in the case of U.P. Basic Education
Boards case (supra), hence it is appropriate that the aforesaid two
questions be considered by the Larger Bench. In addition to the the
above two questions, we add one more question to be considered by
the Larger Bench which is as follows:
(c) Whether the Division Bench judgment in the case of Vijai
Kumar Kushwaha & Ors Vs. State of U.P. & Ors, (2003) 3 UPLBEC
2211 lays down the correct law.
Let the papers be placed before the Hon’ble The Chief Justice for
constituting a Larger Bench for considering the aforesaid three questions.
09/07/2010
SB
13