TaxTMI 
TaxTMI 
2019 (4) TMI 2157
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....ation Officer dated 1.12.2018 and the order of termination dated 3.12.2018 passed by the Manager of the Institution in question (Annexures 9, 10 and 11 to the writ petition). 3. Facts in brief as contained in the writ petition are that Sri. Vidyanand Junior High School, Jarauil Tehsil Charkhanni, Mahoba is an educational Institution imparting education from Classes 6 to 8. The Institution in question is a duly recognized Institution. All its teachers and employees are getting their salary in terms of the provisions contained in U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 and their service conditions are governed under the provisions U.P. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978. That a post of Headmaster of the Junior High School was fallen vacant in the Institution in question. In this regard an order was passed by the District Basic Education Officer, Mahoba on 31.8.2005 granting permission for advertisement for appointment on the aforesaid post. The post of Headmaster had been advertised in the daily newspapers on 16.09.2005. Pursuant to the aforesaid advertiseme....
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...., he has preferred the paragraph 8 of the writ petition, it is argued by the Sri. H.N. Singh, learned Senior Counsel that the order impugned has been passed without affording opportunity of hearing to the petitioner either by the Committee of Management or by the District Basic Education Officer, Mahoba and as such the same are liable to be set aside by this Court. It is further argued that Rule 4 of Rules 1978 has been amended on 12.06.2008 whereby the B.Ed. was held a proper training qualification. It was further argued that the Uttar Pradesh Basic Siksha Sangh has filed P.I.L. Petition No. 52790 of 2017 U.P. Basic Siksha Sangh v. Union of India and others with the prayer of issuing a writ of mandamus commanding the respondent meaning thereby to the State Government as well as to the Union of India to. provide Professional Development Programme for elementary teacher (Open Distance Learning) Pragramme of six month course to the teacher of recognized junior school in the State of U.P. appointed before 12.06.2018. It is further argued that a decision was also taken by the State Government vide its order dated 20.9.2018 whereby the State Government accepted that B.Ed. as a requisite....
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....tended that the B.A. And B.Ed. are not valid teaching experience as per Rule 4(2) (c) of the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978. In paragraph 9 of the counter-affidavit, it is contended that appointment of the petitioner has been made on account of favouritism imparted on behalf of the respondent No. 3. It is further contended that in the subsequent writ petition filed by respondent No. 5, observations were duly made by a co-ordinate Bench of this Court in its judgment and order dated 7.9.2018. Counsel for the respondent No. 5 relied upon paragraph 2 of the aforesaid judgment which is quoted below:- "2. Admittedly, petitioner did not fulfill requisite qualification for appointment on the post of Head Master in Sri. Vidyanand Junior High School, Jarauli, Tehsil-Charkhari, District Mahoba (hereinafter referred to as 'School'). Similarly, respondent-5 Suresh Kumar also did not possess requisite qualification for appointment of said post. By impugned order dated 23.09.2005, District Basic Education Officer, Mahoba (hereinafter referred to as 'DBEO') appointed respondent-5 Suresh Ku....
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....er permanent or temporary, and shall also specify that if the candidate does not join within 15 days from the date of receipt of the appointment letter, his appointment shall be cancelled. (c) A copy of the appointment letter shall also be sent to the District Basic Education Officer." 9. B.Ed. is not at all one of the recognized teacher training course recognized by the State Government or the Board for the purposes of offering appointment in the institution in question as defined under 1978 Rules. Certificate, which are recognized have been described as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate or Certificate of Training. Suresh Kumar in the present writ petition does not possess either of these teaching certificate nor does he has to his credit teachers training course recognized by the State Government for the purposes of being appointed in the institution recognized under 1978 Rules. 10. From perusal of the records it is clear that at the point of time when approval is to be accorded, then authorities entrusted with the task of according approval has to be satisfy himself in terms of sub-rule (5) of Rule 10 to ensur....
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....;s training course recognized by the State Government or the Board such as (Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training); and (c) Three years teaching experience in a recognized schools." 8. A perusal of this Rule indicates that a teachers training certificate is essential qualification for the post of headmaster. The use of expression such as in Rule 4 (2) (b) was relief in support of the submission that it would include B.Ed. The expression 'such' has been defined in Webster's Third New International Dictionary as below:- "1. Or a kind or character about to be indicated, suggested or exemplified. 2. Having a quality already or just specified; used to avoid repletion of a descriptive term. 3. Of the same class, type, or sort: in a same category: similar." 9. The expression 'such' has been defined in Black's Law Dictionary, Fifth Edition as below:- "Of that kind having particular quality or character specified. Identical with, being the same as what has been mentioned. A like similar, of the like kind. "Such" represents the ....
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....t of head master of Senior Basic Schools three years teaching experience as permanent head master of Junior Basic Schools; or permanent assistant teacher of Senior Basic Schools. Therefore, only that assistant teacher who possessed the essential teachers training qualification as provided by the Rule 8 could be appointed headmaster. Teachers training qualifications prescribed by Rule 4(2)(b) of Rules, 1978 and Rule 8 of Rules, 1981 are same. In 1998 there were large number of vacancies of about twenty eight thousand assistant teachers in basic Schools, but candidates with B.T.C. or equivalent training qualifications were not available. The candidates were available who had L.T. and B.Ed. or other equivalent qualifications which are essential teachers training qualifications for appointment of assistant, teacher L.T. Grade for teaching High School Classes 0-10 as provided by Appendix "A" to Regulation 1, Chapter II to the Regulations framed under the U.P. Intermediate Education Act, 1921. In view of large number of vacancies the State Government decided to fill the posts of assistant teachers from the candidates who had passed L.T./B.Ed./C.P. Ed./D.P. Ed./B.P. Ed. The Government fra....
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....imum qualification has been prescribed under the Rules candidates who possess higher qualification cannot be left out from the zone of consideration. He placed reliance on decision of the Apex Court in Mohd. Riazul Usman Gani and Ors. v. District and Session Judge, Nagpur and Ors. 2000 (2) ESC 956 (SC). This decision of the Apex Court is not of any held to the respondents. In paragraph 21 of the Apex Court observed that the law laid down was on its own facts and it was not laying down any Rule for universal application. The Court said so as minimum qualification laid down for peon was making the provision for promotion of a peon as clerk and Regional (Language) Section Writers under the recruitment Rules nugatory. It was held that criteria which had the effect of denying a candidate his right to be considered for the post of the principal that he was having higher qualification than prescribed would be irrational. It is not so in Basic Schools. An assistant teacher can be appointed as headmaster only if he holds teachers training certificate as provided in Rules and not because he is B.Ed. Further this Court has held that B.Ed. is not higher than B.T.C. It has been explained earlie....
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....ions reads as under: "A. (1) Higher Secondary pass of recognized Board/University with an elective subject in the Matric level. (ii) Two year Teachers Training Certificate from the recognized institution. OR B. (i) Intermediate or equivalent from recognized Board/University with an elective subject in the required language at the Metric level. (ii) One year Teacher Training Certificate from a recognized institution. Note.-The candidate applying for the post of Assistant Teacher (Primary) Hindi must have passed Hindi as an elective subject at the Matric level." 3. The submission made on behalf of B.Ed. candidates is that as prescribed in Clause B (ii), one year's Trained Teachers Certificate is not granted anywhere by any institution and therefore, the aforesaid qualification should be treated to be to meant to indicate B.Ed. degree which is a one year teacher's training course after Graduation. 4. The Second contention advanced is B.Ed. qualification should be treated as higher qualification than T.T.C. because primary teachers recruited on T.T.C. qualification can get promotion as teachers to teach higher class....
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....e paucity of T.T.C. candidates, we cannot allow a patent illegality to continue, The recruitment authorities were well aware that candidates with qualification of T.T.C. and B.Ed. are available yet they chose to restrict entry for appointment, only to T.T.C. pass candidates. It is open to the recruiting authorities to evolve a policy of recruitment and to decide the source from which the recruitment is to be made. So far as B.Ed. qualification is concerned, in the connected appeals (CA No. 1728-29 of 2001) arising from Kerala High Court which are heard with this appeal, we have already taken the view that B.Ed. qualification cannot be treated as a qualification higher than T.T.C. because the natures of training imparted for grant of certificate and degree are totally different and between them there is no parity whatsoever. It is projected before us that presently more candidates available for recruitment to primary School are from B.Ed. category and very few from T.T.C. category. Whether for the aforesaid reasons, B.Ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider B.Ed. candidates for t....
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.... of recruitment policy. We find sufficient logic and justification in the State prescribing qualification for post of primary teachers as only T.T.C. and not B.Ed. Whether B.Ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider B.Ed. candidates, for the present vacancies advertised, as eligible. 11. The Division Bench in the impugned Order upheld the decision of the single Judge that in terms of the advertisement, B.Ed. candidates were not eligible to take up the selection and to be included in the rank list. We fail to understand that having thus upheld the decision of the learned single Judge what was the justification for the Division Bench to refer to statutory recruitment Rules applicable to teachers in private primary School, aided by the Government and the judgments rendered by the High Court in their cases, for reversing the judgment of the single Judge and maintaining the rank list including names of the B.Ed. candidates and their appointments of the basis of Rules yet to be framed. 12. On behalf of respondents, it is submitted that since large number of B.Ed. candi....
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.... to non-private Schools." 15. Learned Counsel for the private respondents relying on the above orders of this Court, submits that since the B.Ed. candidates have been appointed after amendment of the Rules and on the statement made by the Counsel for the State and the Public Service Commission, this Court should not upset the appointment of B.Ed. candidates already made. 16. We have held that the impugned judgment of the Division Bench is liable to be set aside and that of the single Judge maintained. Having thus reached a conclusion in favour of the present appellants who are T.T.C. candidates, it Would be highly unreasonable to deny them relief merely because of the interim orders or arrangements made there by this Court Under the aforesaid two orders, B.Ed. candidates were allowed to be appointed only provisionally. We take note of the fact that all the B.Ed. appointees are not before us and even though all B.Ed. candidates who have been arraigned as respondents to these appeals, have been served with notices of these appeals, only a few of them are represented through Counsel. In these circumstances, we would restrict the relief to the candidates who were peti....
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....ldwin (1964 AC 40) that breach of principles of natural justice was in itself treated as prejudice and that no other 'de facto' prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor v. Jagmohan (1980 4 SCC 379) : (AIR 1981 SC 136), Chinnappa Reddy, J. followed Ridge v. Baldwin and set aside the order of supercession of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer. 23. Chinnappa Reddy, J. in S.L. Kapoor's case, laid two exceptions (at SCC p. 395) namely," if upon admitted or indisputable facts only one conclusion was possible", then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this be....
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....will be prejudging the issue. Some others have said, that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via-media rules. We do not think it necessary, in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case." 16. In the case of Haryana Financial Corporation and another v. Kailash Chandra Ahuja reported in (2008) 9 SCC 31: (2008 AIR SCW 6055) it was observed by the Supreme Court that failure to supply a report of Inquiry Officer to the delinquent employee would not ipso facto result in proceedings being declared null and void and order of punishment non est and ineffective. It is for the delinquent-employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. Relevant paragraph of the aforesaid case is quoted hereinbelow:- 26. Before about six decades, in Russell v. Duke of Norfolk (1949) 1 All ER 109 : 65 TLR 225, Tucker, L.J. stated: "There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice m....
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.... of each case". 36. The recent trend, however, is of 'prejudice'. Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant. 37. In Malloch v. Aberdeen Corporation, (1971) 2 All ER 1278 (HL), Lord Reid said; (All ER p. 1283 a-b). "(I)t was argued that to have afforded a hearing to the appellant before dismissing him would have been a useless formality because whatever he might have said could have made no difference. If that could be clearly demonstrated it might be a good answer". (Emphasis supplied) 17. Considering the aforesaid judgment of the Supreme Court a Division Bench of this Court in the case of Smt. Samya Chaudhary v. Union of India and others, reported in 2013 (7) ADJ 496 (DB) held that due to non observance of principles of natural justice, the action cannot be struck down on the ground of violation of principles of natural justice. The relevant paragraphs of the aforesaid judgment is quoted hereinbelow:- 17. It is true that in the instant case, befo....