High Court of Punjab and HaryanaCWP/14546/2024dismissed

Deepak Kumar And ORS v. State Of Punjab And ORS

2024-07-11Mr. Justice Harsimran Singh Sethi39 pages

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# "CM4765LPA2023 For the reasons mentioned therein, the delay of 709 days in filing the appeal is condoned.

The application stands disposed of.

LPA18982023 This appeal is directed against the judgement and order dated 08.11.2021 passed by the learned Single Judge allowing the writ petition filed by the petitioners (respondents No. 4 to 21 herein) quashing and setting aside the advertisement dated 06.03.2020 containing the impugned selection criteria alongwith entire selection process including provisional merit list for recruitment to 2364 posts of Elementary Trained Teachers (in short ETT) as also against an order dated 20.10.2023 dismissing RACW331 2021 seeking review of the judgement and order dated 08.11.2021.

Learned counsel appearing for respondents No. 4 to 161, out of whom respondents No. 4 to 21 herein were the writ petitioners in CWP33632021, states that he has instructions to withdraw the writ petition itself and the said writ petitioners do not want to challenge the criteria for appointment to 2364 posts of ETT Teachers.

Learned State counsel, on instructions from Mr. Harpreet Singh, Assistant Director, Education Recruitment Directorate, Punjab, states that the entire selection process is

completed and the final result will be declared after eight weeks in terms of the original advertisement which was the subject matter of the writ petition and the present appeal. Keeping in view of the above statement made by learned State counsel and Mr. Arjun Shukla, learned counsel appearing for respondents No. 4 to 161, no cause of action survives in the writ petition itself.

The present appeal is allowed and the judgment and order dated 08.11.2021 as well as the order dated 20.10.2023 passed by the learned Single Judge are set aside as both the parties are not disputing the criteria laid down in the advertisement for selection to 2364 posts of ETT Teachers. (RITU BAHRI) ACTING CHIEF JUSTICE (AMAN CHAUDHARY) JUDGE"

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# "6. Two points have been urged taking objection to the plea of the present applicant i.e., the State of Madhya Pradesh. The first one is that this application has been

+ framed as one for clarification and actually, an independent relief is asked for in this application. We have referred to this aspect of the controversy earlier in this judgment. In our opinion, this kind of applications seeking clarification ought not to be entertained and if a final order is passed, the only recourse for seeking alteration of the order is a petition for review on legally permissible ground. Considering the pleadings in this application seeking clarification, we treat this application as a petition for review. We are addressing this issue also in exercise of our jurisdiction that inheres in a Court of record, having regard to Article 129 of the Constitution of India.

A technical plea was raised on behalf of the parties who opposed prospective application of this judgment on the ground that procedure for review as specified in the Supreme Court Rules was not followed and that no opportunity to file affidavits was being given. But having regard to the scope of the present application, we did not consider it necessary to invite further pleadings. Otherwise also, conversation of an application labelled as one for clarification into a review petition at the time of hearing would not be a fatal procedural flaw.

7. In the given facts, we find that the question as to whether the judgment would be prospective or not was not stated by us in the judgment delivered on 11th August, 2023. Ordinarily a judgment acts retrospectively unless it is specifically stated to be otherwise. Moreover, this matter has been heard on several occasions and the points urged by the respective parties have been taken note of by us.

8. As it appears that a large number of candidates with B.Ed. degree had already been appointed on the basis of eligibility

criteria specified by the educational authorities, we do not think it to be equitable to effect their removal. We, accordingly hold that the judgment delivered by this Bench on 11th August, 2023 shall have prospective operation. But prospective operation of this judgment shall be only for those candidates who were appointed without any qualification or conditions imposed by any Court of Law to the effect that their appointment would be subject to final outcome of the case which might have had been instituted by them and such candidates were in regular employment without any disqualification and were appointed in pursuance of a notice of advertisement where B.Ed. was stipulated to be valid qualification. Services of only such candidates shall not be disturbed because of this judgment. We make it clear that this benefit is only for the candidates who were appointed prior to the date our judgment was delivered, on 11th August, 2023. Mere selection of such candidates or their participation in the process will not entitle them for a benefit under our present order.

9. Moreover, the candidates having B.Ed. qualification whose appointments we are protecting in this judgment, will have to undergo a bridge course and we direct the educational authorities to device such course, which would be applicable for each state and union territory, within a period of one year from today. This course shall be only for those appointees who have been engaged with B.Ed. degree only in the subjectposts under conditions stipulated in the earlier part of this order. National Council for Teacher Education shall design such course under overall supervision of the Ministry of Education, Union of India. Upon formulation of such

course, the same shall be publicly notified and a timeframe shall also be given within which the respective candidates shall participate therein. Failure of any candidate to participate and complete the course within the timeframe to be given by the concerned educational authorities will invalidate the appointment of such candidate.

10. We also make it clear that the directions contained in this order shall not be confined to the applicant state only and shall cover all cases which may be pending in different judicial fora in any State or Union territory on the same point of law.

11. The present application stands disposed of in the above terms.

12. Pending application(s), if any, shall also stand disposed of."

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"35. As already discussed hereinabove, NCTE recognition order dated 22nd September 2017 was issued so as to give effect to the directives of MHRD dated 8 th September 2017 so as to provide a onetime window to the teachers who were already working and who in terms of the 2017 Amendment Act were required to acquire the minimum qualifications prior to 1st April 2019. The said order, in any case, cannot be held to be a direction to the State of Uttarakhand to act in contravention of its 2012 Service Rules

, and the advertisements issued on the basis of such Service Rules.

36. We further find that the finding of the High Court that the 18 months D.El.Ed. Diploma (ODL) course in Elementary Education conducted by NIOS is equal to 2 years Diploma is erroneous. There is no notification to that effect issued by NCTE in supersession of its notifications dated 23rd August 2010 and 29th July 2011, wherein it provided minimum 2 years Diploma as a minimum qualification for appointment of teachers. At the cost of repetition, we clarify that the notifications dated 23rd August 2010 and 29th July 2011 of NCTE, were issued in exercise of its powers conferred under Section 23(1) of the RTE Act whereas recognition order dated 22nd September 2017 order was passed in pursuance of the directions issued by MHRD under Section 29 of the NCTE Act.

37. Assuming for a moment that the 18 months D.El.Ed. Diploma by NIOS through ODL mode is equivalent to the 2 years Diploma in Elementary Education recognized under the notifications of NCTE dated 23rd August 2010 and 29th July 2011, the next question that has to be answered is, can the State be prohibited from prescribing the minimum qualifications which is higher than that. A similar question arose for consideration in the case of S. Satyapal Reddy and Others v. Govt. of A.P. and Others7, wherein this Court observed thus:

"7. ......The Governor has been given power under proviso to Article 309 of the Constitution, subject to any law made by the State Legislature, to make rules

& regulating the recruitment which includes prescription of qualifications for appointment to an office or post under the State. Since the Transport Department under the Act is constituted by the State Government and the officers appointed to those posts belong to the State service, while appointing its own officers, the State Government as a necessary adjunct is entitled to prescribe qualifications for recruitment or conditions of service. But while so prescribing, the State Government may accept the qualifications or prescribe higher qualification but in no case prescribe any qualification less than the qualifications prescribed by the Central Government under sub section (4) of Section 213 of the Act......."

[emphasis supplied]

38. We therefore find that the High Court has erred in directing the State Government to consider the candidates (1994) 4 SCC 391/1994 INSC 196 who did not qualify as per the 2012 Service Rules and as per the advertisement based on the Service Rules, particularly when the 2012 Service Rules and the advertisements were not under challenge. The High Court, in our view, could not have issued such a mandamus contrary to such Service Rules.

39. That leaves us with the question as to whether the High Court was justified in holding that the 18 months Diploma conducted by NIOS through ODL mode is said to be equivalent to the 2 years Diploma as required under the notifications of NCTE dated 23rd August 2010 and 29th July 2011.

40. It will be relevant to refer to the observations of this Court in the case of Devender Bhaskar and Others v. State of Haryana and Others8, which read thus: "21. In Mohammad Shujat Ali v. Union of India, (1975) 3 SCC 76 it was held that the question regarding equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications. It was further held that where the decision of the Government is based on the recommendation of an expert body, then the Court, uninformed of relevant data and unaided by technical insights necessary for the purpose of determining equivalence, would not 2021 SCC OnLine SC 1116/2021 INSC 783 lightly disturb the decision of the Government unless it is based on extraneous or irrelevant considerations or actuated mala fides or is irrational and perverse or manifestly wrong.

22. In J. Ranga Swamy v. Government of Andhra Pradesh, (1990) 1 SCC 288 this Court held that it is not for the court to consider the relevance of qualification prescribed for various posts.

23. In State of Rajasthan v. Lata Arun, (2002) 6 SCC 252 this Court held that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It was held thus:

(

"13. From the ratio of the decisions noted above, it is clear that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It is not for courts to decide whether a particular educational qualification should or should not be accepted as equivalent to the qualification prescribed by the authority."

24. In Guru Nanak Dev University v. Sanjay Kumar Katwal, (2009) 1 SCC 610 this Court has reiterated that equivalence is a technical academic matter. It cannot be implied or assumed. Any decision of the academic body of the university relating to equivalence should be by a specific order or resolution, duly published. Dealing specifically with whether a distance education course was equivalent to the degree of MA (English) of the appellant university therein, the Court held that no material had been produced before it to show that the distance education course had been recognized as such.

25. In Zahoor Ahmad Rather v. Sheikh Imtiyaz Ahmad (2019) 2 SCC 404, it was held that the State, as an employer, is entitled to prescribe qualifications as a condition of eligibility, after taking into consideration the nature of the job, the aptitude required for efficient discharge of duties, functionality of various qualifications, course content leading up to the acquisition of various qualifications, etc. Judicial

( review can neither expand the ambit of the prescribed qualifications nor decide the equivalence of the prescribed qualifications with any other given qualification.

Equivalence of qualification is a matter for the State, as recruiting authority, to determine.

26. Having regard to the above, in our view, the High Court has erred in holding that the diploma/degree in Art and Craft given by the Kurukshetra University is equivalent to twoyear Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or diploma in Art and Craft conducted by Director, Industrial Training and Vocational Education, Haryana."

41. In view of what has been held by this Court hereinabove, we find that the High Court erred in holding that 18 months Diploma conducted by NIOS through ODL mode is equivalent to the 2 years regular Diploma, particularly so, when there was no material placed on record to even remotely hold that such a qualification was recommended by the Expert Body NCTE. On the contrary, the communication dated 6th September 2019 of NCTE, the directives of MHRD so also the recognition order dated 22nd September 2017 clearly go on to show that the 18 months Diploma was provided as a one time window to the in service teachers to acquire the minimum qualifications between the 2017 Amendment Act and the outer limit of 1st April 2019. In our considered view, the High Court has

( totally erred in holding that the 2 years Diploma is equivalent to 18 months Diploma.

42. That leaves us with the reliance placed by the learned counsel for NCTE on the judgment of this Court in the case of Ram Sharan Maurya (supra). There can be no doubt that NCTE, as an expert body, has a right to prescribe the minimum qualifications. In the present case itself, by notifications dated 23rd August 2010 and 29th July 2011, NCTE has done so. As already discussed hereinabove, recognition order dated 22nd September 2017 only provides a window for inservice teachers to complete their course prior to 1st April 2019. As such, the said judgment does not apply to the present case."

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Whether speaking/reasoned : Yes Whether reportable : Yes