JUDGMENT
H.K. Rathod, J.
1. Heard learned Senior Advocate Mr. Yatin N. Oza with Ms. Sonal R. Shah, learned Advocate Mr. KB Pujara, learned Advocate Mr. NK Majmudar for petitioners and Mr. Sunit Shah, learned Government Pleader with Mr. Apurva Dave, Vipul Mistri and Ms. Bhavika Kotecha, learned Assistant Government Pleaders for the State Authorities in this group of petitions.
2. This group of petitions has been filed by petitioners against the note which has been advertised by the District Primary Education Officer while giving advertisement for the post of Vidya Sahayaks in different districts. Said note suggests that as regards appointment of the Vidya Sahayaks in the subject of ATD and Music, against the decision of the learned Single Judge of this Court in Special Civil Application No. 5601 of 1997, the State Government has filed Letters Patent Appeal before the Division Bench of this Court and subject to the final decision in LPA, the recruitment process will be initiated by giving separate advertisements for filling up said posts in each district as per requirements.
3. Initially, notices were issued in this group of petitions and thereafter, rule was issued in each matter making it returnable on 15.3.2007 since the service thereof was waived by the learned Government Pleader as well as the learned AGPs appearing for the State Authorities in this group of petitions therefore, group matters are heard today finally with consent of the learned Advocates.
4. In Special Civil Application No. 5601 of 1997, this Court (Coram : Hon’ble Mr. Justice Sharad D. Dave,J.) has, by judgment dated 28.2.2006, decided the issue in respect to the Government Resolution dated 11th July, 1994 and the Circular dated 12th June, 1997. Operating portion para 8 of the said judgment dated 28th February, 2006 is reproduced as under:
8. In the result, this petition is allowed. The impugned Government Resolution dated 11.7.1994 as well as the Circular 12.6.1997 so far as it gives discretion to the Education Committee to recommend the recruitment of A.T.D., candidates upto 7% of the posts of primary teachers / Balgurus only if the Education Committee so requires and only if the need / posts for special subject teachers is established are hereby quashed and set aside. The respondent authorities are, therefore, directed to fill up the posts of primary teachers by recruiting the A.T.D., candidates to the extent of 7% of such posts. Rule is made absolute. No costs.
5. Thus, by judgment and order dated 28.2.2006, this Court has set aside the aforesaid resolution and circular with a direction to the respondents to fill up the posts of primary teachers by recruiting the A.T.D., candidates to the extent of 7% of such posts. Rule is made absolute.
6. Against the said decision of the Single Judge of this Court, Letters Patent Appeal was filed by the State of Gujarat which came to be decided by the Division Bench of this Court (Coram : Hon’ble Mr. Justice Anil R. Dave and Hon’ble Ms. Justice H.N. Devani, JJ.) by judgment dated 28.2.2007. Looking to the decision of the Division Bench of this Court referred to hereinabove, certain observations are very much relevant before passing any order or direction in this group of petitions. Therefore, relevant paragraph 29 to 41 are reproduced as under:
29. Upon perusal of the relevant Government Resolutions, it appears that in the process of giving better education to primary school students, the State of Gujarat had decided to give prominence to certain subjects like tailoring, music, drawing and physical training. Primary school teachers, who are supposed to have educational qualification of PTC, are taught as to how to impart education to the students of primary schools. They are taught the method whereby the children can be made to understand easily and they have specialised in the field of educating children. Such teachers might not be having specialised knowledge in the field of tailoring, music, drawing and physical training etc. and, therefore, the government has framed a policy to the effect that those candidates who are also having specialised knowledge in the aforestated subjects should also be appointed as primary teachers.
30. By Government Resolution dated 31st May, 1965 and 8th June, 1973, it was decided that subjects such as tailoring, music, Hindi, arts, physical training etc should be taught by special subject teachers and the qualifications required by them had also been prescribed under the said resolutions. Moreover, it was also decided that total number of such teachers should not exceed 15% of total number of teachers. Thereafter, by Government Resolutions dated 19th July, 1989, and 22nd December, 1989, some changes were effected in the maximum number of such teachers.
31. Thus, from time to time, looking to the requirement of such special subject teachers, the Government had issued different resolutions. Thereafter, by resolution dated 27th April, 1994 it was decided that from 10% special subject teachers, 7% special subject teachers were to be appointed as no special teachers for tailoring were required. Upon perusal of government files, it appears that intention of the government was to see that about 7% special subject teachers capable of teaching drawing and music were to be appointed but as language of the said Government Resolution was not very clear, it was interpreted as if at least 7% of special subject teachers having ATD and ‘Sangit Visharad’ qualification were to be appointed. In the circumstances, it had become necessary to clarify the intention of the government and, therefore, Government Resolution dated 11th July, 1994 had to be passed clarifying that 7% was the maximum limit for appointing special subject teachers for teaching drawing and music and ATD or ‘Sangit Visharad’ was the respective qualification required for such teachers.
32. After the Government Resolution dated 11th July, 1994 was passed, the government had decided that actual requirement of such special subject teachers should be determined by Education Committee of each district. At the relevant time, the policy with regard to recruitment of Balgurus was in force and, therefore, the impugned circular dated 12th June, 1997 was issued by the Director of Primary Education wherein it was stated that maximum 7% of special subject teachers having qualification of ATD should be appointed and actual requirement of such special subject teachers should be ascertained by the District Education Committee.
33. As observed hereinabove, the scheme with regard to appointment of Balgurus has been abolished and no balguru is to be appointed and, therefore, for all practical purposes the circular dated 12th June, 1997 has become redundant, but so far as Government Resolution dated 11th July, 1994 is concerned, it still survives.
34. Thus, the government finally decided that the District Education Committee of each district should determine the need for such special subject teachers and after considering the requirement, subject to maximum limit of 7% of the posts, recruitment of candidates having qualification of ATD or ‘Sangit Visharad’ should be made.
35. Upon hearing the learned advocates and looking to the policy laid down by the Government, in our opinion, it cannot be said that the policy decision taken by the government under the aforestated Government Resolution and circular is improper or incorrect. It is for the Government to decide as to how many total teachers and how many special subject teachers should be appointed.
36. In our opinion, the policy framed by the government is neither arbitrary nor illegal because, the District Education Committee of all districts are to ascertain the actual requirement and only upon ascertaining the actual requirement, subject to maximum limit fixed in the said resolution, special subject teachers are to be appointed.
37. It is pertinent to note that special subjects are subjects pertaining to extra curricular activities. Teachers teaching extra curricular activities must have a certain limit because, there are other more important subjects which are to be taught to the students. How many teachers are required to be appointed to teach different subjects is a matter of discretion of the appointing authority. Of course, if the authority is acting in an arbitrary manner, the Court can examine the decision. In the instant case, it is not shown as to how the decisions taken by the District Education Committee are improper, illegal or devoid of merits. We are sure that the government must have provided some guideline to the Education Committees or there must be some common principle on basis of which the committees would be ascertaining requirement of such special subject teachers. If the committees headed by responsible government Officers and consisting of some local representatives of people determine the actual requirement of teachers correctly, in our opinion, there is no reason for this Court to interfere with the decision of the committee. Looking to the law laid down by the Hon’ble Supreme Court in the case of Food Corporation of India v. Banu Lodh (supra), it is always for the appointing authority to decide whether all the posts should be filled up or kept vacant.
38. It is also pertinent to note that special subject teachers can teach subjects of their speciality in a much better manner but possibly they might not be too good or effective in teaching other subjects. Looking to the said fact, having more number of special subject teachers might adversely affect the education of the students because such teachers might not be very good at teaching other more important subjects like Maths, Science, Geography etc. and, therefore, the Government might have put an over all limit on appointment of special subject teachers. Subjects like mathematics, science, geography and languages are of vital importance. Students cannot be deprived of teachers who can teach them the aforestated subjects and if more number of special subject teachers are appointed, then the teachers teaching the aforestated subjects would be relatively less and that might not be in the interest of the students. All these factors are to be considered by the Government and not by the Court.
39. Looking to the facts of the case, we are of the view that the learned Single Judge ought not to have directed the government to appoint a particular number of teachers having qualification of ATD by quashing the impugned resolution and circular. The effect of the impugned judgement would be that the Government will have to appoint a particular number of special subject teachers. If more number of special subject teachers are appointed, then not only education of primary school students would be adversely affected but the State Exchequer would also be adversely affected because the State will have to pay salary to such teachers without getting optimum work from them. These are the issues which are better decided by the State on its administrative side rather than this Court.
40. In the circumstances, in our opinion, the impugned resolution dated 11th July, 1994 and the impugned circular dated 12th June, 1997 ought not to have been quashed by the learned Single Judge. We therefore quash and set aside the impugned judgment. The appeal is allowed.
41. Incidentally, it may be noted here that there was some discussion with regard to qualifications of primary school teachers. Without going into the said subject, we may simply say that the Full Bench of this Court, in its judgment dated 8.1.2007 delivered in Special Civil Applications Nos. 8075 of 2001 and 4332 of 2006, has already determined the issue with regard to the basic qualification required for being appointed as a primary school teacher and, therefore we do not wish to make any further observation on the said subject.
7. Thus, net result of the decision of the Division Bench of this Court is that the Resolution dated 11.7.1994 and Circular dated 12.6.1997 both stands restored to their original respective position which would give power to the State Government to have discretion to fill up the posts of ATD/Music Teacher upto 7%.
8. Learned Government Pleader Mr. Sunit Shah raised some apprehension about the observations made by the Division Bench of this Court in paragraph 41 as referred to above wherein it has been noted that there was some discussion with regard to qualifications of primary school teachers and it was observed without going into the said subject that the Full Bench of this Court, in its judgment dated 8.1.2007 delivered in Special Civil Applications Nos. 8075 of 2001 and 4332 of 2006, has already determined the issue with regard to the basic qualification required for being appointed as a primary school teacher and, therefore no any further observation on the said subject was expressed by the Division Bench.
9. Learned Government Pleader Mr. Sunit Shah has relied upon the observations made by the Division Bench of this Court in para 22 of the judgment. Therefore, para 22 of the judgment of the Division Bench of this Court paragraph 22 is reproduced as under:
As discussed hereinabove, as of now, the primary education in the State of Gujarat comprises Standards I to VII. The statutory Recruitment Rules provide for appointment of persons possessing Primary Teachers’ Training Certificate as primary school teachers. Though the Council has proposed that for Standards VI & VII [the upper primary school] the persons possessing B.Ed. qualification also may be appointed as teachers, in absence of a separate upper primary/middle section and in absence of separate set of rules governing the recruitment of teachers in such upper primary or middle schools, the said guidelines cannot be implemented in its true spirit. We have already demonstrated that the Government Resolutions seemingly passed in compliance with the Regulations and the Full Bench judgment in fact contravene the Regulations as well as the judgment of the Full Bench and now also the order of the Hon’ble Supreme Court. Although it may be in the larger interest of the education that the guidelines issued by the Council, a body of experts, be carried out in its true spirit, unless the State Government takes a policy decision to segregate the middle school from the primary school and makes appropriate recruitment rules governing appointment of teachers in such upper primary or middle school, the said guidelines cannot be implemented by passing a mere resolution in contravention of the statutory rules.
In the above circumstances, we are of the opinion that the primary teachers’ training of two years’ duration [as suggested by the Council] shall be the only valid qualification for appointment of teachers in primary schools : be it an appointment in regular pay scale or be it an appointment as Vidya Sahayak. The State Government may, however, consider appointment of candidates possessing post graduate B.Ed. degree for Standards VI & VII of the primary schools but only if and after the State Government segregates Standards VI & VII from Classes I to V by appropriate legislation and requisite guidelines. We answer the reference accordingly.
10. Relying upon the aforesaid paragraph, it is submitted by the learned Government Pleader Mr. Sunit Shah that the Full Bench of this Court has emphasized that the primary teachers’ training of two years’ duration as suggeted by the NCTE shall be the only valid qualification for appointment of teachers in primary schools be it an appointment in regular pay scale or be it an appointment as Vidya Sahayak. Relying upon the aforesaid observations of the Full Bench of this Court, it is submitted by the learned GP Mr. Sunit Shah that the NCTE Regulations, 2001 namely the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 are relevant for the purpose of the present petitions.
11. Learned Senior Advocate Mr. YN Oza as well as learned Advocate Mr. Pujara jointly submitted this regulation has been taken into account by the Full Bench of this Court in paragraph 9 to 12 and has relied upon said paragraphs. Said paragraphs are therefore reproduced as under:
Since the issuance of the aforesaid Resolution dated 1st August, 2000 and pending Special Civil Application No. 8075 of 2001, the Council has, in exercise of powers conferred upon it under Clause (d) (i) of Sub-section (2) of Section 32 read with Section 12(d) of the National Council for Teacher Education Act, 1993 [hereinafter referred to as the Act of 1993] made the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 {hereinafter referred to as, the Regulations}. Regulations 2 & 3 of the Regulations read as under:
2. [These Regulations shall be applicable for recruitment of teachers in all formal schools established, run or aided or recognized by Central or State Government and other authorities for imparting education at pre-school, nursery followed by first two years in formal school, elementary (primary and upper primary school), secondary and senior secondary stages.]
3. (i) The qualifications for recruitment of teachers in educational institutions mentioned in Section 2 above shall be as given in the First and Second Schedules to these Regulations. The qualifications prescribed in the First Schedule shall apply for recruitment of teachers for teaching school subjects. The qualifications prescribed in the Second Schedule shall apply for recruitment of teachers for Physical Education.
(ii) For recruitment of teachers for co-curricular activities such as work experience, art education, etc., existing qualifications or such other qualifications as may be prescribed by the concerned government shall apply.
(iii) For promotion of teachers from one level to the next level of teaching, minimum qualification as given in the Schedules for the concerned level would be required.
Clause-III of the First Schedule to the Regulations reads as under:
III Elementary
(a) Primary
(b)Upper Primary (Middle School Section)
(i) Senior Secondary School certificate or Intermediate or its equivalent; and
(ii) Diploma or certificate in basic teachers’ training of a duration of not less than two years. OR Bachelor of Elementary Education {B.El. Ed.}
(i) Senior Secondary School certificate or Intermediate or its equivalent; and
(ii) Diploma or certificate in elementary teachers training of a duration of not less than two years
OR
Bachelor of Elementary Education {B.El. Ed.}
OR
Graduate with Bachelor of Education (B.Ed.) or its equivalent.
IV Secondary/High School
Graduate with Bachelor of Education {B.Ed.} or its equivalent
OR
Four years’ integrated B.Sc., B.Ed. Or an equivalent course.
Note:
1. For appointment of teachers for primary classes, basic teachers’ training programme of 2 years’ duration is required, B.Ed. is not a substitute for basic teachers’ training programme.
2. Some of the States are having basic teachers training course of one year duration only, while in some other State students passing secondary level examination are admitted to primary level teacher training courses. Such States may, by 2005, conduct basic teachers’ training programmes of a duration of not less than two years with admission being open to Senior Secondary/Intermediate pass candidates. In the meantime candidates who have undergone basic teachers’ training course of one year duration or were admitted to such training programmes after passing secondary level examination only may be given employment in the concerned States only.
Thus, under the Regulations, for the purpose of recruitment of teachers,the elementary education has been divided into two sections viz. Primary & Upper-Primary [middle school section]. For the purpose of recruitment to primary section, a candidate is required to possess basic teachers’ training [equivalent to primary teachers’ certificate examination]. Whereas, for upper primary section (middle school section), Post-Graduate Degree in Education (B.Ed.) also is considered to be a valid qualification. Standards I to V are treated as primary education; while standards VI & VII are considered as upper primary/middle school section. While deciding the reference, the Full Bench, as recorded hereinabove, answered the reference adinvitem in consonance with the Regulations. S
1. Therefore, relying upon the aforesaid observations made by the Full Bench of this Court, it is jointly submitted by the learned Sr. Advocate Mr. Oza as well as Mr. Pujara that the First Schedule of the Regulation require qualification of Senior Secondary School Certificate or Intermediate or its equlvalent and Diploma or Certificate in basic teachers’ training of a duration of not less than two years for primary teachers. They also submitted that in respect of the recruitment of teacher for co-curricular activities such as work experience, art education etc., existing qualifications or such other qualifications as may be prescribed by the concerned government shall apply. They also submitted that item No. (i) of Regulation 3 is applicable for recruitment of teachers for teaching school subjects and the second schedule shall apply for recruitment of teachers for physical education and Item No. (ii) of Regulation 3 for co-curricular activities such as work experience, art education etc. for other subjects such as ATD and Music Teacher, existing qualification of such special subject primary teacher as may be prescribed by the concerned Government from time to time shall apply. This has been made clear in the Regulation No. 3 (ii).
2. In view of the aforesaid discussion as referred to above by the Full Bench of this Court, it is clear that for the post of primary teacher, qualification of school subjects, senior school certificate or inter mediate or its equivalent and diploma or certificate in basic teacher training of the duration of not less than two years is required and for the subject of physical education, qualification prescribed in second schedule shall apply for recruitment of teachers in other subjects (special subjects) for co-curricular activities, such as work experience, art education, etc., existing qualifications or such other qualifications as may be prescribed by the concerned Government shall apply which includes ATD and Music Teachers. Accordingly, it is submitted by the learned Senior Advocate Mr. Oza as well as learned Advocate Mr. Pujara that the policy which has been framed by the State Government right from 1965 till today by various circulars issued from time to time namely 31st May,1965, 8th June, 1973, 10th July, 1989, 26th December, 1989, 27th Apil, 1994, 11th July, 1994, 12th June, 1997 and 11th June, 1998 and thus by issuing aforesaid circulars/resolutions, policy has been framed by the State Government and same shall apply where qualifications are prescribed to the post of ATD and Music Teachers.
3. Considering the aforesaid regulations of the NCTE as referred to above and the observations made by the Full Bench as well as the Division Bench of this Court in respect of the subject matter, according to my opinion, apprehension raised by the learned Government Pleader Mr. Sunit Shah is not well founded.
4. I have considered the various submissions made by the learned Advocates for the parties. Main challenge in the present petitions is the note made by the respondents in the advertisement for the post of Vidya Sahayak. Now, the hurdle, according to the State Government which is mentioned in the note is over in view of the clear decision of the Division Bench of this Court in Letters Patent Appeal No. 119 of 2007 dated 28.2.2007 since it is restoring the position which was prevailing prior to the judgment of the learned Single Judge dated 29/2/2006 in SCA No. 5601 of 1997. I have also considered the decision of the Full Bench of this Court as well as the decision of the learned Single Judge in respect of the matter at issue. I have also considered the apprehension which has been raised by the learned Government Pleader Mr. Sunit Shah about the observations made by the Full Bench of this Court in respect of the qualifications of the primary teachers. After considering the discussion/observations made by the Full Bench of this Court and also considering the observations made by the Division Bench of this Court, matter is very much clear that according to the NCTE Regulation No. 3 (i) is relating to primary teachers qualification and also relating to the qualification of CP Ed and Regulation 3(ii) is relating to the qualification co-curricular subjects namely Art and Music etc. based on the existing policy of the State Government where the qualifications for the said post have been prescribed. Therefore, Regulation 3(ii) provides for special subject teacher, whatever policy prevailing in the State of Gujarat as per the above referred policy shall have to be implemented by the State of Gujarat for recruiting ATD and Music Teachers. So, according to my opinion, apprehension raised by the learned Government Pleader Mr. Shah relating to qualification of primary teachers on the basis of the observations made by the Full Bench of this Court is not well founded because, considering the NCTE Regulations, 2001, post of ATD and Music Teacher is covered by Regulation 3(ii) for which qualification has been prescribed in the policy by the State Government for the post of ATD and Music Teacher and same shall prevail and accordingly, State Government shall have to fill up the posts as early as possible. So, it comes to the same effect that on last occasion, in whatever manner State Government has recruited upto 7%, in the same manner, State Government shall have to fill up the posts of ATD and Music Teacher upto 7% as per their existing requirement and need while keeping in view the interest and future of the students those who are prosecuting their studies in primary section means from Standard 1 to 7. Therefore, as per this Court’s opinion, apprehension voiced by the learned Government Pleader is not well founded and no further clarification is required to be made by this Court.
5. In view of the aforesaid observations made by this Court after considering the submissions made by the learned Advocates for the parties and the decisions of the learned Single Judge of this Court as well as the decision of the Full Bench as well as the Division Bench of this Court as referred to above, it is directed to the State Government to go ahead and proceed further for making recruitment of the posts of ATD and Music Teachers immediately as per their existing requirement and need which has been tentatively calculated by the State Government and complete the recruitment process for both the posts of ATD and Music Teachers as early as possible preferably within six weeks from the date of receipt of copy of this order.
6. With these observations and directions, these petitions are disposed of at this stage without expressing any opinion on merits of the matter.
7. Rule in each of the petition is made absolute in terms indicated herein above with no order as to costs.