{"id":193880,"date":"2010-03-26T00:00:00","date_gmt":"2010-03-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-vs-managing-on-26-march-2010"},"modified":"2017-08-13T21:04:42","modified_gmt":"2017-08-13T15:34:42","slug":"r-vs-managing-on-26-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-vs-managing-on-26-march-2010","title":{"rendered":"R vs Managing on 26 March, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
R vs Managing on 26 March, 2010<\/div>\n
Author: Ks Jhaveri,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/12260\/1994\t 17\/ 17\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 12260 of 1994\n \n\n \n \n=========================================================\n\n\n \n\nR\nP GOSWAMI - Petitioner(s)\n \n\nVersus\n \n\nMANAGING\nTRISTEE & 3 - Respondent(s)\n \n\n=========================================================\n \nAppearance : \nMR\nAD OZA for\nPetitioner(s) : 1, \nMR MUKUND M DESAI for Respondent(s) : 1 -\n2. \nRULE SERVED for Respondent(s) : 3, \nGOVERNMENT PLEADER for\nRespondent(s) :\n4, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE KS JHAVERI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 26\/03\/2010 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
 \tBy way of this petition the
\n\tpetitioner has prayed to quash and set aside the impugned action of
\n\tthe respondents to treat the petitioner as untrained teacher to
\n\tquash the judgment of the Tribunal to the extent of not considering
\n\tthe petitioner as a trained teacher and not granting such pay scale
\n\tand further to quash and set aside the action of Education
\n\tDepartment of not treating the teacher like that of the petitioner
\n\tappointed after 1.1.1977 being trained teachers.\n<\/p>\n
 \tThe brief facts of the case are
\n\tas under:\n<\/p>\n
2.1 \tThe petitioner was appointed in
\n\trespondent school. As per the say of the petitioner the petitioner
\n\twas paying less salary but was obtaining signature on the receipt
\n\tshowing full salary. On 19.8.1992, the respondent school raised an
\n\texplanation of the petitioner that why she should not be considered
\n\tas untrained teacher. The petitioner had replied the same, which was
\n\tnot accepted by the respondent.\n<\/p>\n
2.2 \t Being aggrieved by the said
\n\tbehavior, the petitioner filed an application  bearing no. 213 of
\n\t1992 before the Tribunal and the same was allowed, but the specific
\n\tdirection for regular payment was not given and therefore the
\n\tpetitioner had filed Review application bearing no. 21 of 1994,
\n\twhich was allowed by the Tribunal.  According to the petitioner, the
\n\trespondents had misinterpreted the provisions of law  and judgment
\n\tof this Court reported in 25(1) GLR Page 65 and the relevant
\n\tinstructions, guidelines issued by the government on that basis the
\n\tsaid reports treating the petitioner as untrained and assessing the
\n\tsalary in the lower time scale of untrained teachers. Hence this
\n\tpetition.\n<\/p>\n
 \tHeard learned advocates for the
\n\trespective parties and perused the documents on record.\n<\/p>\n
 \tThe issue involved in this
\n\tpetition is squarely covered by the decision of this Court (Coram:
\n\tA.R.Dave, R.M.DOshit, J.R.Vora,J.,J.J.) in the case of SUDIP
\n\tTripathi and Anr. V\/s. State of Gujarat & Ors. reported in
\n\t(2007)1 GLR 359 wherein this  Court had
\n\tobserved as under :-\n<\/p>\n
CAV
\nJUDGMENT (Per
\n: HON’BLE Ms.
\nJUSTICE R.M DOSHIT)<\/p>\n
These two petitions, preferred under Article 226 of the
\nConstitution of India, raise a common question whether a post
\ngraduate degree in Education [B.Ed.] can be said to be a valid
\nqualification for appointment as Vidya Sahayak [Primary School
\nTeacher] in the panchayat service of the State of Gujarat.\n<\/p>\n
\t The
\nprimary education in the State of Gujarat is governed by the Bombay
\nPrimary Education Act, 1947 [hereinafter referred to as,  the
\nAct of 1947 ]. The State Government has, under its various
\norders, entrusted the function of primary education to the Primary
\nEducation Committees under the control of the District Panchayats \/
\nMunicipal Corporations \/ Municipalities. The appointment of teachers
\nin the schools run by the District Primary Education Committees is
\ngoverned by the Gujarat Panchayat Service [Recruitment of Primary
\nTeachers] Rules, 1970 [hereinafter referred to as,  the
\nRules ] made by the State Government in exercise of the
\npowers conferred by Section 323 of the Gujarat Panchayats Act, 1961.
\nClause (iii) of Rule 2 of the Rules defines the words, ‘Qualified
\ncandidates’ to mean,   candidates who have passed any one
\nor more of the qualifying examinations.  The ‘qualifying
\nexamination’ is defined in clause (iv) thereof to mean,  an
\nexamination specified in Schedule-I . Schedule-I to the
\nRules reads as under :-\n<\/p>\n
\t   Secondary
\n\tSchool Certificate Examination of the Gujarat   Secondary School
\n\tCertificate Board together with a certificate of Primary Teachers’
\n\tCertificate Examination;\n<\/p>\n
\t   Primary
\n\tSchool Certificate Examination together with a certificate of
\n\tPrimary Teacher’s Certificate Examination.\n<\/p>\n
\t    Lok
\n\tShala Certificate Examination together with a certificate of Primary
\n\tTeacher’s Certificate Examination.\n<\/p>\n
Thus,
\npassing of Primary Teachers’ Certificate [PTC] Examination is a
\nprerequisite for appointment as Primary School Teacher in Panchayat
\nService.\n<\/p>\n
 \tUnder
\nGovernment Resolution dated 11th
\nJune, 1998, with a view to resolving unemployment problem of PTC
\npassed candidates in the State, the State Government had introduced
\nVidya Sahayak Scheme. By the said Resolution the State Government had
\nresolved to fill up 20,000 vacancies under Vidya Sahayak Scheme with
\neffect from that year. The said Resolution provided, inter
\nalia, that
\nappointment as  Vidya Sahayak be made from amongst the candidates
\npossessing qualifications of (i) SSC, PTC; (ii) Trained Graduates;
\nand (iii) SSC, CP Ed. (Certificate
\nin Physical Education).\n<\/p>\n
Though the Resolution is not explicit, we are informed that the
\ncandidate concerned was required to possess any one of the
\naforementioned qualifications. Clause-8 of the said Resolution
\nprovided that after two years of satisfactory service, the Vidya
\nSahayaks would be absorbed in service of the concerned Primary
\nEducation Committee on the posts of primary teachers falling vacant
\non account of superannuation. The remaining Vidya Sahayaks would be
\nabsorbed as Primary Teachers in the regular pay scale of primary
\nteacher  after completion of five years’ service as Vidya Sahayak.
\nSince the issuance of the said Resolution, pursuant to the decision
\nof the Division Bench of this Court dated 21st June, 2000 rendered in
\nSpecial Civil Application No. 4005 of 1987, the State Government has
\npassed a Resolution on 1st
\nAugust, 2000 declaring that the trained Graduate [i.e.
\nGraduate B.Ed.] shall
\nnot be a valid qualification for appointment as Vidya Sahayak. It is
\nthis Resolution dated 1st
\nAugust, 2000 which is the subject matter of challenge in the above
\nSpecial Civil Application No. 8075 of
\n2001.\n<\/p>\n
\t The
\npetitioners in Special Civil Application No. 8075 of 2001 are one
\nSudip Tripathi, a trained Graduate and one-Gujarat Talimy Snatak Hit
\nRakshak Samiti which, according to the averments made in the
\npetition, is an organization advancing the cause of trained-graduates
\n[B.Ed.] for their appointment as trained teacher\/vidya sahayak in
\nprimary schools and that the majority of the trained graduates
\n{B.Ed.} in the State of Gujarat are its members. It is the claim of
\nthe petitioners that until the year 1977, B.Ed. Was considered to be
\nthe valid qualification for appointment as Primary Teacher and
\nPrimary Teachers possessing such qualification were considered
\nTrained Primary Teachers. By Circular dated 1st July, 1978
\nsuch trained graduates were exempted from passing  PTC examination.
\nEven this Court in several of its judgments has held that the
\nqualification of B.Ed. Shall be a valid qualification for appointment
\nas Primary Teacher and that such Primary Teachers were entitled to
\nthe pay-scale of a Trained Primary Teacher. One of the said judgments
\ni.e., judgment  dated 20th June, 1996 passed in the matter
\nof Shreyas Education Trust v. Adyaru Dadubhai @ Sanat Kumar
\nRatilal [Special Civil
\nApplication No. 1729 of 1995 : Decided by R.K Abichandani, J.]
\nwas confirmed by the Division Bench in Letters Patent Appeal No. 1048
\nof 1996 on 22nd
\nJuly, 1998. Nevertheless,
\nanother Division Bench [Coram
\n: B.C Patel, J.,
\nas he then was
\n& P.B
\nMajmudar, J.];\n<\/p>\n
unaware of the above referred Order dated 22nd
\nJuly, 1998 made on Letters Patent Appeal No. 1048 of 1996, took a
\ncontrary view by its judgment dated 21st
\nJune, 2000 passed in Special Civil Application No. 4005 of 1987. This
\ntime, the Division Bench held that the primary teaching is a special
\nskill and requires a special training. The training acquired in B.Ed.
\nCourse is not equivalent to the training imparted in PTC course.
\nThe two are not comparable and one cannot
\nbe replaced for the other. In other words, a degree in Education
\n[B.Ed.]
\ncannot be said to be a valid qualification for appointment as a
\nPrimary Teacher. The impugned
\nResolution dated 1st
\nAugust, 2000 came to be issued in compliance with the above referred
\njudgment dated 21st
\nJune, 2000. The petitioners, therefore, prayed  that in view of the
\nearlier Division Bench order dated 22nd
\nJuly, 1998, the later judgment dated 21st  June, 2000 be held to be
\nper incurium
\n and in view of the two contrary views, the matter be referred to the
\nlarger Bench.\n<\/p>\n
The matter came up for hearing before the learned Single Judge [Coram
\n: C.K Buch, J.].\n<\/p>\n
The learned Single Judge, by his Order dated 8th
\nNovember, 2001 referred the matter to the larger Bench as prayed for
\nby the petitioners in the following terms.\n<\/p>\n
\t whether
\na person holding the degree of Graduate B.Ed. Is a trained teacher or
\nnot and can be appointed as Vidya Sahayak or a primary teacher .\n<\/p>\n
The
\nsaid reference came up for hearing before the Full Bench {Coram
\n: Bhawani Singh,
\nC.J.,
\nand Messr. Justice J.N Bhatt & K.R Vyas,
\nas they were
\nthen].\n<\/p>\n
The Full Bench, by its judgment and order dated 3rd
\nDecember, 2003, with the consensus of the learned advocates, answered
\nthe Reference as under :-\n<\/p>\n
 A
\nperson holding the degree of Graduate B.Ed., is a  trained teacher
\nfor standards VI & VII but is not a trained teacher for standards
\nI to V, with regard to his\/her appointment as a primary teacher
\nVidhya Sahayak in a Primary School.\n<\/p>\n
The
\nsaid judgment was challenged before the Hon’ble
\nSupreme Court  in Civil Appeal No. 838 of 2006 by a group of
\nappellants possessing PTC qualification. The Hon’ble
\nSupreme Court by its Order dated 6th
\nJanuary, 2006
\nset-aside
\nthe above referred decision dated
\n3rd
\nOctober, 2003 of the Full Bench and remanded the matter to this
\nCourt. The Hon’ble
\nSupreme Court observed that,  ..The decision of
\nthe Full Bench will therefore have to be reconsidered after hearing
\nthe appellants as well as the NCTE as well as the parties who are
\nbefore it.\n<\/p>\n
 Pursuant to the above order of the Hon’ble
\nSupreme Court, the above Special Civil Application No. 8075 of 2001
\nstood revived. The petitioners have impleaded the National Council
\nfor Teachers’ Education [hereinafter referred to as,  the
\nCouncil ]and
\nthe appellants before the Hon’ble
\nSupreme Court as party respondents. The matter has come up before us
\nfor reconsideration, as directed by the Hon’ble
\nSupreme Court.\n<\/p>\n
Since the issuance of the aforesaid Resolution dated 1st
\nAugust, 2000 and pending Special Civil Application No. 8075 of 2001,
\nthe Council has, in exercise of powers conferred upon it under Clause\n<\/p>\n
(d) (i) of Sub-section (2) of Section 32 read with Section 12 (d) of
\nthe National Council for Teacher Education Act, 1993 [hereinafter
\nreferred to as  the Act of 1993 ]
\nmade the National Council for Teacher Education (Determination
\nof Minimum Qualifications for Recruitment of Teachers in Schools)
\nRegulations, 2001 {hereinafter referred to as,  the
\nRegulations }.\n<\/p>\n
Regulations 2 & 3 of the Regulations read as under :-\n<\/p>\n
\t[These
\n\tRegulations shall be applicable for recruitment of teachers in all
\n\tformal schools established, run or aided or recognized by Central or
\n\tState Government and other authorities for imparting education at
\n\tpre-school, nursery followed by first two years in formal school,
\n\telementary (primary and upper primary school), secondary and senior
\n\tsecondary stages.]<\/p>\n
\t(i)
\n\tThe qualifications for recruitment of teachers in educational
\n\tinstitutions mentioned in Section 2 above shall be as given in the
\n\tFirst and Second Schedules to these Regulations. The qualifications
\n\tprescribed in the First Schedule shall apply for recruitment of
\n\tteachers for teaching school subjects. The qualifications prescribed
\n\tin the Second Schedule shall apply for recruitment of teachers for
\n\tPhysical Education.\n<\/p>\n
\t(ii)\tFor
\nrecruitment of teachers for co-curricular activities such as work
\nexperience, art education, etc., existing qualifications or such
\nother qualifications as may be prescribed by the concerned government
\nshall apply.\n<\/p>\n
\t(iii)
\nFor promotion of teachers from one level to the next level of
\nteaching, minimum qualification as given in the Schedules for the
\nconcerned level would be required.\n<\/p>\n
Clause-III
\nof the First Schedule to the Regulations reads as under :-\n<\/p>\n
\t\t\t\tIII<\/p>\n
\t\t\t\tElementary<\/p>\n<\/blockquote>\n
\t\t\t\t(a)
\n\t\t\t\tPrimary<\/p>\n<\/blockquote>\n
\t\t\t\t(b)Upper
\n\t\t\t\t             Primary  (Middle School Section)         <\/p>\n<\/blockquote>\n
\t\t\t\t(i)
\n\t\t\t\tSenior Secondary School certificate or Intermediate or its
\n\t\t\t\tequivalent; and<\/p>\n<\/blockquote>\n
\t\t\t\t(ii)
\n\t\t\t\tDiploma or certificate in basic teachers’ training of a duration
\n\t\t\t\tof not less than two years.\n<\/p><\/blockquote>\n
\t\t\t\t                  OR<\/p>\n
\t\t\t\tBachelor
\n\t\t\t\tof Elementary Education {B.El. Ed.}<\/p>\n<\/blockquote>\n
\t\t\t\t(i)
\n\t\t\t\tSenior Secondary School certificate or Intermediate or its
\n\t\t\t\tequivalent; and<\/p>\n<\/blockquote>\n
\t\t\t\t(ii)
\n\t\t\t\tDiploma or certificate in elementary teachers training of a
\n\t\t\t\tduration of not less than two years<\/p>\n
\t\t\t\t                  OR<\/p>\n
\t\t\t\tBachelor
\n\t\t\t\tof Elementary Education {B.El. Ed.}<\/p>\n
\t\t\t\t                   OR<\/p>\n
\t\t\t\tGraduate
\n\t\t\t\twith Bachelor of Education (B.Ed.) or its equivalent.\n<\/p><\/blockquote>\n
\t\t\t\tIV<\/p>\n
\t\t\t\tSecondary\/High
\n\t\t\t\tSchool<\/p>\n
\t\t\t\tGraduate
\n\t\t\t\twith Bachelor of Education {B.Ed.} or its equivalent<\/p>\n
\t\t\t\tOR<\/p>\n
\t\t\t\tFour
\n\t\t\t\tyears’ integrated B.Sc., B.Ed. Or an equivalent course.\n<\/p><\/blockquote>\n
Note
\n:\n<\/p>\n
\tFor
\n\tappointment of teachers for primary classes, basic teachers’
\n\ttraining programme of 2 years’ duration is required, B.Ed. is not a
\n\tsubstitute for basic teachers’ training programme.\n<\/p>\n
\tSome
\n\tof the States are having basic teachers training course of one year
\n\tduration only, while in some other State students passing secondary
\n\tlevel examination are admitted to primary level teacher training
\n\tcourses. Such States may, by 2005, conduct basic teachers’
\n\ttraining programmes of a duration of not less than two years with
\n\tadmission being open to Senior Secondary\/Intermediate pass
\n\tcandidates. In the meantime candidates who have undergone basic
\n\tteachers’ training course of one year duration or were admitted to
\n\tsuch training programmes after passing secondary level examination
\n\tonly may be given employment in the concerned States only.\n<\/p>\n
Thus,
\nunder the Regulations, for the purpose of recruitment of teachers,the
\nelementary education has been divided into two sections viz. Primary
\n& Upper-Primary [middle school section]. For the purpose
\nof recruitment to primary section, a candidate is required to possess
\nbasic teachers’ training [equivalent to primary teachers’
\ncertificate examination]. Whereas, for upper primary section
\n(middle school section), Post-Graduate Degree in Education
\n(B.Ed.) also is considered to be a valid qualification. Standards I
\nto V are treated as primary education; while standards VI & VII
\nare considered as upper primary\/middle school section. While deciding
\nthe reference, the Full Bench, as recorded hereinabove, answered the
\nreference adinvitem in consonance with the Regulations.\n<\/p>\n
 The appellants before the Supreme Court have preferred the above
\nreferred Special Civil Application No. 4332 of 2006, a substantive
\npetition seeking declaration that the PTC is the only valid
\nqualification for appointment as Vidya Sahayak. They have challenged
\nthe Government Resolution dated 5th
\nJune, 2004 seemingly passed in consonance with the Regulations and
\nthe above referred decision of the Full Bench in so far as the
\ngraduate B.Ed. has been made a valid qualification for appointment as
\nVidya Sahayak.\n<\/p>\n
 Mr. Sinha has submitted that the reference made by the learned
\nSingle Judge by Order dated 8th
\nNovember, 2001 was wholly uncalled for. He has submitted that the
\njudgment dated 21st
\nJune, 2000 of the Division Bench related to a primary school teacher
\nappointed in a non-government, recognized, aided primary school
\ngoverned by Schedule-F to the Primary Education Rules, 1951. Under
\nthe provisions made under the said Schedule-F, such primary school
\nteachers are required to possess a PTC [Primary
\nTeachers’ Certificate].\n<\/p>\n
The question was whether teachers who did not possess PTC but had a
\nhigher qualification of post-graduate degree in education [B.Ed.] can
\nbe said to be a trained primary teacher, and whether such teachers
\nwere entitled to higher pay-scale as a trained primary teacher. The
\nSpecial Civil Application No. 8075 of 2001 did not involve such an
\nissue. He has submitted that the judgment dated 21st
\nJune, 2000 passed by the Division Bench in Special Civil Application
\nNo. 4005 of 1987 was entirely on different subject matter. The
\nreference made to the larger Bench, therefore, was not competent. He
\nhas further submitted that even the Full Bench erred in answering the
\nreference by consent of the learned advocates. The answer given by
\nthe Full Bench was not a considered
\ndecision of the Full Bench. He has submitted that as held in the
\nmatter of Satishchandra
\nBhailalbhai Shah & Ors. v. State of Gujarat
\n[1984 (1) GLR 655] and in the matter of Vidya Vikas Primary School
\n[Special
\nCivil Application No. 2903 of 1988
\n: Decided on 6th
\nFebruary, 1996 :: Coram-N.N
\nMathur, J.}
\nand the order in the matter of Shreyas
\nEducation Trust vs. Adyaru Dadubhai @ Sanat Kumar Ratilal
\n{Special Civil Application No. 1729 of 1995 : Decided on 20th
\nJune, 1996 :: Coram-R.K
\nAbichandani, J.];\n<\/p>\n
confirmed in Letters Patent Appeal No. 1048 of 1996, the
\nqualification of post-graduate
\ndegree in Education {B.Ed.} is a qualification higher than that of
\nPTC. A person possessing such higher qualification cannot be
\nconsidered ineligible for the purpose of appointment as Primary
\nSchool Teacher and for that matter as Vidya Sahayak. He has submitted
\nthat the persons possessing higher qualification of post graduate
\nB.Ed. are, therefore, entitled to be appointed as Vidya Sahayak. The
\naction of the State Government in non-suiting such persons for
\nappointment as Vidya Sahayak is erroneous, contrary to the aforesaid
\njudgments and is not conducive to the larger interest of primary
\neducation.\n<\/p>\n
Mr. Oza has contested the petition. He has supported the above
\nreferred judgment dated 21st
\nJune, 2000 passed by the Division Bench in Special Civil Application
\nNo. 4005 of 1987. He has also submitted that in the State of Gujarat
\nthere is one primary education from Standard I to Standard VII and
\nthere is no bifurcation of primary education as suggested by the
\nCouncil. In absence of  segregation of primary education in standards
\nI to VI and in standards VI & VII, the Regulations cannot be
\neffectively implemented. In such circumstances, there is no scope for
\nappointment of persons possessing post graduate
\ndegree in Education as Primary School Teacher or as Vidya Sahayak.\n<\/p>\n
Mr. Jani has appeared for the Council. He has submitted that Section
\n12 of the Act of 1993 empowers the Council to lay down guidelines in
\nrespect of minimum qualification for a person to be employed as a
\nteacher in Schools or recognized institutions. The Regulations are,
\ntherefore, in the nature of guidelines and are binding to the schools
\nand the recognized institutions to that extent.\n<\/p>\n
 Learned Advocate General Mr. Trivedi has relied upon the Bombay
\nPrimary Education {Gujarat
\nAmendment}
\nAct, 2003 [Gujarat
\nAct No.3 of 2003].\n<\/p>\n
He has submitted that by the said
\namendment, the Act of 1947 has been amended to include the definition
\nof the word  Vidya Sahayak
\nand to make provisions in connection with recruitment and service
\nconditions of the Vidya Sahayaks. The provisions made in connection
\nwith the recruitment of Vidya Sahayaks from time to time have now
\nbeen amended and compiled in the Government Resolution dated 5th
\nJune, 2004; as modified by Government Resolutions dated 22nd
\nJuly, 2004; 29th
\nJuly, 2004; 3rd
\nSeptember, 2004 and 3rd
\nFebruary, 2005. He has submitted that by experience, it has been
\nlearnt that the teachers possessing post graduate degree in Education
\n[B.Ed.] are better suited for teaching standards VI & VII
\nstudents. It is, therefore, desirable that such teachers are
\nrecruited for teaching students in Standards VI & VII.\n<\/p>\n
 We
\nare
\nof the view that the submissions made by Mr. Sinha run contrary to
\nthe averments made and contentions raised in the petition. As
\nrecorded hereinabove, the petitioners have specifically referred to
\nthe above referred judgments\/orders and have asked for a reference to
\nthe larger Bench. It was the petitioners who invited reference to a
\nlarger Bench and it was the learned advocates representing the
\nparties who invited the order of
\nthe Full Bench on reference by consensus. It lies ill in the mouth of
\nMr. Sinha to submit that the learned Single Judge erred in making
\nreference to the larger Bench by Order dated 8th
\nNovember, 2001 and that the Full Bench erred in deciding the
\nreference by consensus by its judgment dated 3rd
\nOctober, 2003. Besides, we have our own doubts whether the
\npetitioners in Special Civil Application No. 8075 of 2001 have locus
\nstandi
\nto bring the petition in the present nature. It is not demonstrated
\nbefore us that the petitioner no.2 is a recognized organization or
\nhas a legal status to sue. The petitioner no.1 is an individual. He
\nhas not preferred the petition in a
\nrepresentative capacity nor has he obtained permission to sue in
\nrepresentative capacity. At the best, the petitioner no.1 can seek
\nrelief for himself. No such relief is claimed in the said petition.
\nNor it is the case of the petitioner no. 1 that he has sought
\nemployment as Vidya Sahayak or that he has been denied such
\nappointment for want of requisite qualification.\n<\/p>\n
In our view, this is one more avoidable litigation and multifarious
\nproceedings caused on account of governmental indecisiveness and the
\nlack of a firm policy decision. The primary education has been made a
\ntesting ground for various policies framed not necessarily in the
\ninterest of education or administration. Frequent changes, at times
\nconflicting, tend to undermine the quality of education   low as it
\nis. As recorded hereinabove, the recruitment of
\nteachers in primary schools under the control of the District Primary
\nEducation Committees is governed by the Rules made in that behalf.
\nThe said statutory provisions require that the person appointed as
\nPimary School Teacher shall possess a Primary Teachers’ Certificate
\n[PTC].  Thus, it is apparent that all along, under the Rules, the PTC
\nhas been considered to be the only valid qualification for
\nappointment as Primary School Teacher. The  Vidya Sahayak
\nthough sounds a separate cadre is essentially a cadre leading to
\nabsorption as a Primary School Teacher by sheer passage of time.
\nTherefore, a person who is not eligible for appointment as primary
\nschool teacher cannot be eligible for appointment as Vidya Sahayak
\neither. In our opinion, the Division Bench in Special Civil
\nApplication No. 4005 of 1987 had correctly considered the requirement
\nfor appointment of PTC candidates as primary school teachers and that
\nshould govern the field. Even the Hon’ble Supreme Court  has,
\nin its order dated 6th January, 2006 passed in Civil
\nAppeal No. 383 of 2006 observed that,  ..It is also made
\nclear that, in any event, only PTC trained teachers
\nwill be appointed for Classes I to V.\n<\/p>\n
In view of the above observation also, it is now the law of the land
\nthat only PTC trained teachers can be considered to be eligible for
\nappointment as teachers in primary section of elementary education
\ni.e., classes I to V.\n<\/p>\n
\tThe
\nimpugned
\nResolution dated 1st
\nAugust, 2000 had been issued by the State Government in due
\ncompliance with the above referred judgment dated 20th
\nJune, 2000 passed by the Division Bench in Special Civil Application
\nNo. 4005 of 1987. By the said Resolution, the eligibility for
\nappointment of Vidya Sahayak had been modified to non-suit the
\ntrained graduates i.e., the persons possessing post-graduate B.Ed.
\nqualification. The Resolution dated 12th
\nFebruary, 2004 has been passed pursuant to the judgment dated 3rd
\nDecember, 2003 passed by the Full Bench in Special Civil Application
\nNo. 8075 of 2001. By the said Resolution, the State Government has
\nmade provision for recruitment of Vidya Sahayaks in Standards VI &
\nVII. It provides that such Vidya Sahayaks shall be trained graduates.
\nSuch trained graduates, on appointment, shall impart education in
\nStandards VI & VII and also in Classes I to V. The PTC primary
\nteachers may also impart education in Standards VI & VII. The
\ntrained graduates
\nshall take bridge training course as recommended by the Council.
\nSince the said Resolution, the aforesaid eligibility criteria are
\ncompiled in the impugned
\nResolution dated 5th
\nJune, 2004. The said Resolution has been modified by the other
\nResolutions  referred to hereinabove. However, as the said
\nmodifications are not relevant for the purpose of the present
\npetitions, they are not dealt with. It is apparent that the above
\nreferred Resolutions dated 12th
\nFebruary, 2004 and 5th
\nJune, 2004 have been passed in contravention of the Rules as well as
\nin contravention of the Regulations and also the judgment of the Full
\nBench pursuant to which the said Resolutions came
\nto be passed. The Rules, as discussed hereinabove above, make PTC the
\nonly valid qualification for appointment as Primary Teacher. The Full
\nBench while answering the reference categorically held that a person
\npossessing qualification of graduate B.Ed. is not a trained teacher
\nfor Standards I to V with regard to his\/her appointment as a primary
\nteacher\/Vidya Sahayak in a primary school. Even the Hon’ble
\nSupreme Court has now, by its aforesaid Order dated 6th
\nJanuary, 2006, held that,  the only PTC trained
\nteachers will be appointed for Classes I to V.
\nNevertheless, the said Resolutions provide for appointment of
\ngraduate B.Ed. teachers as Vidya Sahayak for Classes I to V also.
\nSimilarly, the PTC teachers are called upon to take classes in
\nStandard VI & VII also. In other words, the Regulations and the
\ndecision of the Full Bench have been completely contravened.\n<\/p>\n
As to standard VI &
\nVII classes, under the Regulations made by the Council, the teachers
\nat the middle school level i.e., in Standards VI & VII may
\npossess a primary teachers’ training or in the alternative they may
\nalso be Bachelor of Education [B.Ed.]. But such teachers have to take
\nbasic training in primary teachers’ training course. The State
\nGovernment has, as a policy decision, decided that the teachers in
\nClasses VI & VII of primary schools shall have the qualification
\nof B.Ed. The State Government has, however, neither segregated
\nClasses VI & VII education nor has issued guidelines how the said
\npolicy decision shall be implemented where there is one primary
\neducation comprising standards I to VII.\n<\/p>\n
\tAs
\ndiscussed hereinabove, as of now, the primary education in the State
\nof Gujarat comprises Standards I to VII. The statutory Recruitment
\nRules provide for appointment of persons possessing Primary Teachers’
\nTraining Certificate as primary school teachers. Though the Council
\nhas proposed that for Standards VI & VII [the upper primary
\nschool] the persons possessing B.Ed. qualification also may be
\nappointed as teachers, in absence of a separate upper primary\/middle
\nsection and in absence of separate set of rules governing the
\nrecruitment of teachers in such upper primary or middle schools, the
\nsaid guidelines cannot be implemented in its true spirit. We have
\nalready demonstrated that the Government Resolutions seemingly passed
\nin compliance with the Regulations and the Full Bench judgment in
\nfact contravene the Regulations as well as the judgment of the Full
\nBench and now also the order of the Hon’ble Supreme Court.
\nAlthough it may be in the larger interest of the education that the
\nguidelines issued by the Council, a body of experts, be carried out
\nin its true spirit, unless the State Government takes a policy
\ndecision to segregate the middle school from the primary school and
\nmakes appropriate recruitment rules governing appointment of teachers
\nin such upper primary or middle school, the said guidelines cannot be
\nimplemented by passing a mere resolution in contravention of the
\nstatutory rules.\n<\/p>\n
In the above circumstances, we are of the opinion that the primary
\nteachers’ training of two years’ duration [as
\nsuggested by the Council]
\nshall be the only valid qualification for appointment of teachers in
\nprimary schools : be it an appointment in regular pay scale or be it
\nan appointment as Vidya Sahayak. The State Government may, however,
\nconsider appointment of candidates possessing post graduate B.Ed.
\ndegree for Standards VI  & VII of the primary schools but only if
\nand after the State Government segregates Standards VI & VII from
\nClasses I to V by appropriate legislation and requisite guidelines.
\nWe answer the reference accordingly.\n<\/p>\n
In view the above discussion, Special Civil
\nApplication No. 8075 of 2001 is dismissed with cost. Rule is
\ndischarged. Special Civil Application No. 4332 of 2006 is
\nallowed to the above extent. Rule is made absolute accordingly. The
\nparties shall bear their own costs.\n<\/p>\n
\t\tSince
\n\tthe issue involved in the present petition is squarely covered by
\n\tthe aforesaid judgment, for the reasons set out in the said judgment
\n\tthe present   petition also required to be dismissed. Accordingly
\n\tthe petition is dismissed. Rule is discharged with no order as to
\n\tcosts.\n<\/p>\n
[K.S.Jhaveri,J.]<\/p>\n
*Himansu<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court R vs Managing on 26 March, 2010 Author: Ks Jhaveri,&Nbsp; Gujarat High Court Case Information System Print SCA\/12260\/1994 17\/ 17 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12260 of 1994 ========================================================= R P GOSWAMI – Petitioner(s) Versus MANAGING TRISTEE & 3 – Respondent(s) ========================================================= Appearance : […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-193880","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nR vs Managing on 26 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/r-vs-managing-on-26-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"R vs Managing on 26 March, 2010 - 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