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CASE NO.: Appeal (civil)  8034 of 2001

PETITIONER: Basic Education Board, U.P.

RESPONDENT: Upendra Rai and others

DATE OF JUDGMENT: 12/02/2008

BENCH: H. K. Sema & Markandey Katju

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 8034 OF 2001 [with Civil Appeal Nos. 3998/2002, 153/2003, 1207/2006,  2796/2006, 4784/2006, Civil Appeal Nos\005\005\005/2008 (arising  out of SLP(Civil) Nos. 4819/2002, 9289/2002 & 20337/2002]

MARKANDEY KATJU, J.

1.      Delay condoned.

2.      Leave granted.

3.      Since a common question of law is involved in the appeals filed by  the State of U.P., Civil Appeal No.8034/2001 Basic Education Board, U.P.  vs. Upendra Rai and others is taken as the leading case for consideration in  dealing with these appeals. Civil Appeal No. 8034/2001 has been filed  against the impugned judgment and order dated 18.2.2000 passed by a  Division Bench of the High Court of Judicature at Allahabad in Special  Appeal No. 25 of 2000 by which the Learned Division Bench set aside the  judgment of Learned Single Judge dated 7.12.1999.   

4.      Before the Learned Single Judge the challenge was to the  advertisement dated 28.4.1999 and the Government Circular dated  11.8.1997. The Learned Single Judge dismissed the writ petition, but in  appeal the Division Bench set aside that judgment and also the impugned  Government Circular and the advertisement and allowed the appeal.  Against  the judgment of the Division Bench, this appeal has been filed by special  leave.

5.      The question in this case and the connected appeals is about the  qualification of the respondent for being appointed as Assistant Master in  Junior Basic Schools in U.P.  The essential academic qualification  prescribed for the post of Assistant Master or Assistant Mistress of Junior  Basic Schools in U.P.  is mentioned in Rule 8 of the U.P. Basic Education  (Teachers) Service Rules, 1981 (hereinafter referred to as the Rules) which  have been framed under the U.P. Basic Education Act, 1972.

6.      At the relevant time the said qualification mentioned in Rule 8 was  Intermediate Examination of the Board of High School and Intermediate  Education, Uttar Pradesh or any other qualification recognized by the  Government as equivalent thereto together with training qualification  consisting of a Basic Teacher Certificate, Hindustani Teacher Certificate,  Junior Teacher Certificate, Certificate of teaching or any other training  course recognized by the Government as equivalent thereto.

7.      A perusal of Rule 8 shows that there are two essential requirements  for being appointed as Assistant Master or Assistant Mistress of Junior Basic

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Schools, these are \026

(a)     Intermediate Certificate of the Board of High School  and  Intermediate Education, UP (which was later substituted  by an amendment of Rule 8 by prescribing bachelor’s  degree instead of Intermediate Certificate);      

(b)     Training qualification consisting of Basic Teachers  Certificate (BTC), Hindustani Teachers Certificate,  Junior Teachers Certificate or Certificate of Teaching or  any other training course recognized by the Government  equivalent thereto.  

8.      In the present case, we are concerned with the second essential  requirement viz., training qualification.

9.      Admittedly, the respondent in Civil Appeal No. 8034/2001 (Upendra  Rai) only holds a Diploma in Education (in short D.Ed.) which was awarded  to him after he completed two years’ course from DIET Jabalpur in M.P.  He  does not hold any of the certificates of training qualification referred to in  Rule 8 of the Rules.  

10.     It was submitted by learned counsel for the writ petitioner (respondent  in this appeal) before the High Court that the aforesaid D.Ed. certificate  awarded by the DIET, Jabalpur was earlier recognized as equivalent to BTC  of U.P.  However, even if that is so, we find that its equivalence (if it existed  at all) to BTC has been, admittedly, rescinded by the U.P. Government  Circular dated 11.8.1997.

11.     The aforesaid U.P. Government Circular dated 11.8.1997 has been  annexed as Annexure P-5 to this appeal.  This Circular dated 11.8.1997 was  written by the Secretary, Basic Education, U.P. Government to the Director  of Education (Basic) & Chairman, Basic Shiksha Parishad, U.P. In this  Circular it is mentioned in paragraph 2 that it has been decided by the  Government after sufficient consideration that in accordance with the  provisions of the Uttar Pradesh Basic Education (Teachers) Service Rules,  1981 the posts of Assistant Teachers in the primary schools of the Board be  filled up only with those candidates who are trained in U.P. Government  Training Institutes and possess BTC or Hindustani Teaching Certificate or  teaching certificate of Junior Teachers or Teacher.  It was also specifically  mentioned in the aforesaid circular dated 11.8.1997 that equivalence to BTC  granted earlier to other certificates was cancelled with immediate effect.

12.     The aforesaid circular in Hindi is reproduced below :

         "la[;k&2657/15.5.97-127/97  Vh0 lh0 iszid]         Jh vkyksd jatu         lfpo] csfld f’k{kk         mRrj izns’k ’kkluA

lsok es]

       f’k{kk funs’kd <cs0=] y[kuEA         ,oa         v/;{k] f’k{kk ifj"kn] m0 iz0  y[kuEA f’k{kk <5=&vuqHkkx      y[kuE % fnukad 11.08.1997

       fo"k; % m0 iz0 csfld f’k{kk ifj"kn  }kjk lapkfyr fo|ky;ksa esa         v/;kidksa dh fu;qfDr ds lEcU/k  esaA

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egksn;]         mi;qZDr fo"k;d vkids v)Z’kkldh; i=  la0 cs0 f’k0 i0 537/97-98 fnukad 14.4.97 dh  vksj vkidk /;ku vkdf"kZr djrs gq;s  eq>s ;g dgus dk funs’k gqvk gS fd ch0  Vh0 lh0 ds led{k ekurs gq;s dfri;  ’kklukns’kksa ds }kjk fofHkUu  izf’k{k.k izek.k-i=@mikf/k izkIr  vH;fFkZ;ksa dks m0 iz0 csfld f’k{kk  ifj"kn }kjk lapkfyr fo|ky;ksa ls lgk;d  v/;kid ds in ij fu;qfDr gsrq vgZ ekuk  x;k gSA ifj"knh; fo|ky;ksa esa Hkkjh  la[;k esa fjfDr;ksa rFkk izns’k esa  miyC/k ch0 Vh0 lh0 izf’k{k.k  vH;fFkZ;ksa dks /;ku esa j[krs gq;s m0  iz0 csfld f’k{kk ifj"kn v/;kid lsok  fu;ekoyh esa lkrosa la’kks/ku }kjk  fu;qfDr dh izfX;k ds dfri; la’kks/ku  fd;s x;s gSaA o"kZ 1995 ls jk"V*  h;  v/;kid f’k{kk ifj"kn˜ }kjk fofHkUu  izf’k{k.k laLFkkvksa dks ekU;rk iznku  djus ds lEcU/k esa foLr‘r fn’kk  funsZ’k fuZxr fd;s x;s gSa ftuds  vkyksd esa vc fofHkUu f’k{kd izf’k{k.k  vgZrkvksa ds lEcU/k esa Fks iquZfopkj  dh vko’;drk gks x;h gSA         2. mDr ds vkyksd esa ’kklu }kjk  lE;d˜ fopkjksijkUr ;g fu.kZ; fy;k x;k  gS fd vc izns’k ds ifj"knh; izkFkfed  fo|ky;ksa esa lgk;d v/;kid ds inksa ij  fu;qfDr gsrq m0 iz0 csfld f’k{kk  <v/;kid= lsok fu;ekoyh] 1981  ds  izkfo/kkuksa ds vuqlkj mYkj izns’k  ljdkj }kjk lapkfyr laLFkkvksa ls  izf’kf{kr ch0Vh0lh0 rFkk fgUnqrkuh  v/;kid izek.k-i=] twfu;j v/;kid izek.k- i= ,oa v/;kid izek.k-i= izkIr  vH;fFkZ;ksa ls gh Hkjk tk;A rFkk  ch0Vh0lh0 ds leku vU; izf’k{k.k  ikB˜;Xeksa ,oa mikf/k;ksa dks iznku dh  x;h led{krk;sa rkRdkfyd izHkko ls  fujLr dj nh tk;A

3. vuqjks/k gS fd d‘I;k ’kklu ds  vi;qZDr vkns’kksa dk dM+kbZ ls vuqikyu  lqfuf’pr djkus ,os ifj"knh; fo|ky;ksa  esa lgk;d v/;kid ds fjDr inksa dks m0  iz0 csfld f’k{kk <v/;kid= lsok  fu;ekoyh] 1981 ds izkfo/kkuksa ds vuqlkj  ch0Vh0lh0 rFkk fgUnqLrkuh v/;kid  izek.k-i=] twfu;j v/;kid izek.k-i= ,oa  v/;kid izek.k-i= izkIr vH;fFkZ;ksa ls  gh Hkjs tkus dh dk;Zokgh djus dk d"V  djsaA tgka dgha ekuuh; U;k;ky;ksa }kjk  ikfjr vkns’kksa ds vuqlkj dk;Zokgh  visf{kr gks ml ij rn˜uqlkj dk;Zokgh dh  tk;s rFkk mls ’kklu ds laKku esa rRdky  yk;k tk;sA

       Hkonh;]         vyksd jatu         lfpoA"

13.     We are concerned here with the second paragraph of the aforesaid

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circular.

14.     The respondent admittedly got appointment after the Circular dated  11.8.1997 and hence this Circular applies to him.  Admittedly, the  respondent does not possess the qualification mentioned in the said Circular.   He does not either possess BTC, Hindustani Teaching Certificate, JCT or  Certificate of Teaching.  The D.Ed. Certificate is no longer regarded as  equivalent to BTC after the circular dated 11.8.1997.  This was a policy  decision of the U.P. Government, and it is well settled that the Court cannot  interfere with policy decisions of the Government unless it is in violation of  some statutory or constitutional provision.  Hence, we are of the opinion that  the respondent was not entitled to be appointed as Assistant Master of a  Junior Basic School in U.P.

15.     Grant of equivalence and /or revocation of equivalence is an  administrative decision which is in the sole discretion of the concerned  authority, and the Court has nothing to do with such matters.  The matter of  equivalence is decided by experts appointed by the government, and the  Court does not have expertise in such matters.  Hence it should exercise  judicial restraint and not interfere in it.   

16.     Learned counsel for the respondent, however, submitted that the  respondent has the requisite qualification in view of the National Council  For Teacher Education Act, 1993 (hereinafter referred to as the NCTE Act).   He has invited our attention to various provisions of the said Act. In  particular he has referred to Section 2(m) of the NCTE Act  which states as  under: " (m) "teacher education qualification" means a degree,  diploma or certificate in teacher education awarded by a  University or examining body in accordance with the  provisions of this Act;"                                  17.     Learned counsel also submitted that the NCTE Act overrides the UP  Basic Education (Teachers) Service Rules 1981 in view of Article 254 of the  Constitution read with Entry 25 of List III of the Seventh Schedule to the  Constitution.  

18.     Learned counsel submitted that if a person has the qualification  mentioned in section 2(m) of the NCTE Act he has the necessary  qualification for being appointed as an Assistant Master or a Teacher in any  educational institution in India.  We regret, we cannot agree.  

19.     A perusal of the NCTE Act shows that this Act was made to regulate  the teachers training system and the teachers training institutes in the  country. It may be mentioned that there are two types of educational  institutions \026 (1) ordinary educational institutions like primary schools, high  schools, intermediate colleges and universities and (2) teachers’ training  institutes.  The NCTE Act only deals with the second category of institutions  viz. teachers’ training institutes.  It has nothing to do with the ordinary  educational institutions referred to above.  Hence, the qualification for  appointment as teacher in the ordinary educational institutions like the  primary school, cannot be prescribed under the NCTE Act, and the essential  qualifications are prescribed by the local Acts and Rules in each State.  In  U.P. the essential qualification for appointment as a primary school teacher  in a Junior Basic School is prescribed by Rule 8 of the U.P. Basic Education  (Teachers) Service Rules, 1981 which have been framed under the U.P.  Basic Education Act, 1972.  A person who does not have the qualification  mentioned in Rule 8 of the aforesaid Rules cannot validly be appointed as an  Assistant Master or Assistant Mistress in a Junior Basic School.

20.     Learned counsel for the respondent then referred to section 12(d) of  the NCTE Act which states that the National Council for Teacher Education   established under sub-section (1) of section 3 can lay down guidelines in  respect of minimum qualifications for a person to be employed as a teacher  in schools or in recognized institutions.  He also invited our attention to

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section 14(1) of the NCET Act which states as under: "(1) Every institution offering or intending to offer a  course or training in teacher education on or after the  appointed day, may, for grant of recognition under this  Act, make an application to the Regional Committee  concerned in such form and in such manner as may be  determined by regulations: Provided that an institution offering a course or training  in teacher education immediately before the appointed  day, shall be entitled to continue such course or training  for a period of six months, if it has made an application  for recognition within the said period and until the  disposal of the application by the Regional Committee."

Sub-section (5) of section 14 states as under:

"(5) Every institution, in respect of which recognition has  been refused shall discontinue the course or training in  teacher education from the end of the academic session  next following the date of receipt of the order refusing  recognition passed under clause (b) of sub-section (3)".

21.     Learned counsel has also referred to section 17(1) and (4) of the  NCTE Act.   Under section 17(1) the Regional Committee if satisfied that a  recognized institution has contravened any provision of the Act or the rules  and regulations, it can withdraw recognition of such recognized institution  after giving opportunity of hearing.  The consequences of withdrawal of  such recognition are given in section 17(4) which states as under:

" (4) If an institution offers any course or training in  teacher education after the coming into force of the order  withdrawing recognition under sub-section (1) or where  an institution offering a course or training in teacher  education immediately before the appointed day fails or  neglects to obtain recognition or permission under this  Act, the qualification in teacher education obtained  pursuant to such course or training or after undertaking a  course or training in such institution, shall not be treated  as a valid qualification for purposes of employment  under the Central Government, any State Government or  University, or in any school, college or other educational  body aided by the Central Government or any State  Government".          

22.     It may be mentioned that the word "institution" is defined in Section  2(e) of the NCTE Act to mean an institution which offers courses or training  in teacher education.  Thus, the NCTE Act does not deal with the ordinary  educational institutions like primary schools, high schools, intermediate  college or university.  The word "institution" as defined in Section 2(2) only  means teachers’ training institute and not the ordinary educational  institutions.   Hence, it is only the teachers’ training institutions which have  to seek grant of recognition or continuation of recognition from the Regional  Committee.  The ordinary educational institutions do not have to seek any  such recognition or continuation under the NCTE Act.  In fact, the NCTE  Act does not relate to the ordinary educational institution at all.  We,  therefore, fail to understand how it can be said that the NCTE Act overrides  the UP Basic Education Act and Rules made thereunder.  In fact, the two  Acts operate in altogether two different fields.  The NCTE Act deals with  the teachers’ training institutions while the UP Basic Education Act deals  with the ordinary primary schools in U.P. and not any teachers’ training  institute.  The argument of learned counsel for the respondent is thus wholly  misconceived.

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23.     The impugned judgment also proceeds with the same fallacy.  The  Division Bench, in our opinion, wrongly relied upon Article 254 of the  Constitution.  Article 254, as stated above, has no application in this case at  all because the two Acts operate in two different fields.  In our opinion, the  Division Bench, therefore, wrongly held that the respondent (the appellant  before the Division Bench) had the requisite qualification for being  appointed as an Assistant Master in a Junior Basic School.   

24.     In our opinion the Division Bench also erred in holding that there was  violation of Article 14 of the Constitution.  We see no violation of Article 14  by the impugned circular or the advertisement dated 28.4.1999.  This aspect  of the matter has been discussed in detail in the judgment of the learned  Single Judge of the High Court dated 19.12.1997 in writ petition no.33856  of 1997, Hira Mani vs. District Basic Shiksha Adhikari connected with writ  petition no.32184 of 1997 Smt. Kiran Kumari vs. State of U.P., and we see  no reason to take a contrary view.  Hence, the view taken by the Division  Bench, in our opinion, is not correct.   

25.     In view of the above, the impugned judgment of the Division Bench is  set aside and the writ petition filed before the High Court is dismissed.  The  appeal is allowed.  There shall be no order as to costs.

Civil Appeal Nos. 3998/2002, 153/2003 & Civil Appeal  Nos\005.\005/2008(@ SLP(Civil) Nos. 4819/2002, 9289/2002 &  20337/2002)

26.     In view of the decision given above in Civil Appeal No. 8034/2001,  these appeals are allowed.  There shall be no order as to costs.

Civil Appeal No. 1207/2006

27.     Civil Appeal No. 1207 of 2006 was filed against the judgment of the  Division Bench of the High Court in Special Appeal No. 328 of 2001 which  was dismissed both on merits and on the point of limitation.  In the special  circumstances, we condone the delay in filing the Special Appeal.  The  appeal is allowed in view of the decision given above in Civil Appeal No.  8034 of 2001. There shall be no order as to costs.

Civil Appeal Nos. 2796/2006, 4784/2006  

28.     In view of the decision given in C.A. No. 8034/2001, these appeals  are dismissed.  There shall be no order as to costs.