Judgment:
N.K. Mehrotra, J.
1. All the aforesaid writ petitions have been filed for issuing the writ in the nature of mandamus commanding the opposite parties to consider the cases of the petitioners for their appointment as Assistant Teacher in the primary schools and to pay them salary on the said post of Assistant Teacher in the primary schools.
2. Since the common question of law is involved, all the writ petitioners are being disposed of together by a common judgment finally with the consent of the parties.
3. The writ petitioners are holding the B. Ed. degree while admittedly the B.T.C. trained teachers are eligible for the post of the Assistant Teacher of the primary schools under Rules. The facts as alleged in the petitions are near about the same. There are U.P. Basic Education (Teacher Service) Rules, 1981 which lay down the eligibility for the post of the Assistant Teacher in primary schools. Rule 8 of the aforesaid rules deal with the academic qualification. This rule provides the following academic qualification for the post of Assistant Master and Assistant Mistress of Junior Basic School.
'A Bachelor's Degree from a University established by law in India or a degree recognized by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course recognized by the Government as equivalent thereto.'
4. Earlier seven Writ Petition Nos. 2447 (SS) of 1991, 2448 (SS) of 1991, 4367 (SS) of 1991, 5406 (SS) of 1991, 6628 (SS) of 1991, 6815 (SS) of 1991 and 8325 (SS) of 1991 were decided by a common judgment on 23.12.1992. The opposite parties were directed that in case sufficient numbers of B.T.C. trained candidates are not available for appointment as Assistant Teacher In the Basic School, the petitioners who have qualified for appointment as Assistant Teacher after securing the degree of B. Ed. be appointed as Assistant Teacher in the Basic Schools. The Basic Shiksha Parishad preferred special appeal against this judgment Bearing No. 21 of 1993 (S/B) which was dismissed on 1.11.2001 by the Division Bench of this Court. It was held by the Division Bench in appeal that B. Ed. Degree holders having a higher qualification should be given appointment on the posts of the Assistant Teacher for which the qualification is prescribed for the aforesaid post. The State Government preferred S.L.P. to the Hon'ble Supreme Court. Later on, this S.L.P. was withdrawn by the Basic Shiksha Parishad, therefore, this S.L.P. was dismissed as withdrawn on 22.4.2002. After that various writ petitions were filed and in a number of writ petitions, the Hon'ble single Judge of this Court passed the same orders that in case the B.T.C. Teachers are not available, the persons holding B. Ed. qualification should be given appointment as untrained teachers.
5. Further 120 writ petitions were decided by the learned single Judge of this Court on 30.11.2002 and all these writ petitions were disposed of by giving directions to the opposite parties to consider the case of the petitioners for appointment as Assistant Teacher in primary schools if, sufficient numbers of B.T.C. qualification holders are not available for the selection. In some of the districts, the District Basic Shiksha Adhikari issued appointments to the B. Ed. Degree holders as untrained teachers.
6. In Writ Petition No. 3931 of 2003 (S/S), Dinesh Pratap Awasthi and Ors. v. State of U.P. and Ors., the Hon'ble single Judge of this Court dismissed the writ petition by holding that no relief can be granted to the persons who do not possess the B.T.C. training certificate for appointment of Assistant Teacher in the primary school. This judgment was pronounced on 11.7.2003. Same Hon'ble Judge dismissed the writ petition filed by Smt. Tarawati for same relief earlier on 25.4.2003. The Hon'ble single Judge in the aforesaid two cases relied on the Supreme Court judgment in Yogesh Kumar and Ors. v. Government of N.C.T. Delhi and Ors., 2003 (21) LCD 425. In Writ Petition No. 3133 (S/S) of 20O3, Ajay Kumar Singh and Ors. v. State of U.P. and Ors., this Court again dismissed the writ petition after following the decision of this Court in Writ Petition No. 2232 of 2003 (S/S), Smt. Tarawati v. State of U.P. and Ors. and the judgment of Supreme Court in Yogesh Kumar and Ors. v. Government of N.C.T. Delhi and Ors. (supra).
7. In a number of writ petitions, the Hon'ble single Judge of this Court directed the opposite parties to decide the representation of the petitioners because the District Basic Shiksha Adhikari, Bahraich, had given appointment to certain teachers holding B. Ed. Degree on the post of Assistant Teacher in primary schools as untrained teachers because of the judgment of this Court that in case B.T.C. Teachers are not available, the B. Ed. Degree holder teachers should be given appointment as untrained teachers.
8. The learned standing counsel for Basic Shiksha Parishad has informed this Court that in some of the writ petitions decided on 30.11.2002, special appeals have been filed and the Division Bench of this Court has stayed the judgment of this Court dated 30.11.2002 by passing an interim order. The learned standing counsel of Basic Shiksha Parishad has also informed that the Government has set up an enquiry against those persons who have given appointment to the teachers who do not hold the qualification of B.T.C. essential for the post of Assistant Teacher in primary schools.
9. After hearing the learned counsel for the petitioners and the learned standing counsel appearing on behalf of the District Basic Shiksha Parishad, I find that now the law has been settled by the Supreme Court in the following two decisions :
'1. P.N. Latha and Anr. v. State of Kerala and Ors., (2003) 3 SCC 541 ;
2. Yogesh Kumar and Ors. v. Government of N.C.T. Delhi and Ors., (2003) 3 SCC 548.'
10. The following principles have been settled by the aforesaid two decisions of the Supreme Court :
(i) B. Ed. cannot be treated to be higher qualification than T.T.C. (equivalent to B.T.C. in the State of U.P.).
(ii) Whether for a particular post, the source of recruitment should be from the candidates of T.T.C. qualification (B.T.C. qualification) or B. Ed. qualification is a matter of recruitment policy.
(iii) Whether B. Ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned.
(iv) Equity and law are twin brothers and law should be applied and interpreted equitably but equity cannot override written or settled law.
(v) It is open to the recruiting authority to evolve a policy of recruitment and to decide the source from which the recruitment is to be made.
(vi) If, any deviation from the rules allows entry to ineligible persons, it deprives many others who could have been competed for the post.
(vii) A patent illegality cannot be allowed to continue merely on the ground that the others holding B. Ed. degree have been given appointment of untrained teachers.
11. Fewf of the learned counsel for the petitioners have argued before me that the decision of the Supreme Court in Yogesh Kumar and Ors. v. Government of N.C.T. Delhi and Ors. (supra) is not applicable because the Supreme Court has observed in the judgment as follows :
'............. We make it clear that we are not called upon to express any opinion on any B. Ed. candidates appointed as primary teachers pursuant to advertisements in the past and our decision is confined only to the advertisement which was under challenge before the High Court and in this appeal.'
12. In my opinion, this contention has no force. The judgment of the Court is always prospective and that is why the Hon'ble Supreme Court has made it clear that this judgment will not apply to those who have already got appointment irrespective of the fact that they were not holding required qualification under the rules. I may refer the following relevant portion of the judgment of the Supreme Court in P.M. Latha v. State of Kerala, (2003) 3 SCC 541 cited in Yogesh Kumar v. Government of N.C.T. Delhi (supra) :
'Recruitment to public services should be held strictly in accordance with the terms of advertisement and the recruitment rules, if any. Deviation from the rules allows entry to ineligible persons and deprives many others who could have competed for the post. Merely because in the past some deviation and departure was made in considering the B. Ed. candidates (and it has been pointed out that that was so done because of the paucity of T.T.C. candidates) a patent illegality cannot be allowed 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. It may be that presently more candidates available for recruitment to primary school are from B. Ed. category and very few from T.T.C. category but 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 the Court cannot consider B. Ed. candidates for the present vacancies advertised as eligible.'
13. In view of the aforesaid legal settled position, the relief sought for cannot be granted in these writ petitions but at the same time, I cannot close my judgment and without taking cognizance of the fact that there are atleast 21,000 vacancies of teachers in primary schools is the State of U.P. and every Government only at the opportune time makes an attempt to fill up these posts but on one reason or the other, these posts are not being filled up. It is known to everybody that in the year 1999 near about 23,000 teachers holding degree of the B. Ed., L.T, C.P.Ed. and B.P.Ed. were given special training of B.T.C. for giving them appointment on the post of the Assistant Teacher in the primary school of Basic Shiksha Parishad and a decision was taken by the Government that holders of degree of B. Ed. and L.T. after taking special training of B.T.C. shall be recognized equivalent to B.T.C. trained teacher and they will be given appointment on the post of Assistant Teacher in the primary schools of Basic Shiksha Parishad. This arrangement was made only for once. I understand that these teachers must be working at present also. Further in the year, 2001, the Government made an attempt to fill up 21,000 posts of Assistant Teacher of primary schools by giving special training to such unemployed graduates who were holding the degree of B. Ed. and L.T. but in Writ Petition No. 37124 of 2001 (S/S), Anant Kumar Tiwari v. State of U.P. and Ors., this Court quashed the decision of special training of B.T.C. It is also known to everybody that the State Government preferred a Special Appeal Bearing No. 404 of 2002, State of U.P. v. Anant Kumar Tiwari and Ors., this Court quashed the decision of the Government for treating special B.T.C. training as equivalent to B.T.C. qualification. This Judgment was pronounced on 23.11.2002 but the State Government did not take any action to get the special training course of B.T.C. recognized by National Council of Teachers Education as equivalent qualification for appointment on the post of Assistant Teacher in Junior Basic Schools. Since this judgment still holds good, it was bounden duty of the State Government to get this special training of B.T.C. to the holders of degree of B. Ed. and L.T. recognized by the National Council of Teacher Education. Perhaps the attention of the Government has not been invited by those who are bound to advise correctly to the Government that although, it is only directive of the Constitution under the Chapter of Directive principles of State policy which requires the State to make endeavor to provide free and compulsory education for all children until they complete the age of 14 years but this directive principle of the State policy is not only in the shape of directive only after the decision of the Supreme Court in Unni Krishnan v. State of A.P., AIR 1993 SC 2178. The Supreme Court has implied the right to education from right to life and personal liberty guaranteed by Article 21, Therefore, the right to education in the context of these directive principles means ; every child has a right to free education upto the age of 14 years. I am conscious of this legal position that directive principles are not enforceable in the courts but when the Supreme Court has laid down the law by giving judicial decision in Unni Krishnan case (supra), the right to education for the children upto the age of 14 years has become a fundamental right and the State is bound to grant this fundamental right. For granting this fundamental right, it is the duty of the State to fill up all these 21,000 posts of Assistant Teacher in the primary schools of Basic Shiksha Parishad. I am also conscious of this position that this right to education is circumscribed by the limits of economic capacity of the State but if, the State is to be run as welfare State, then the State has to generate resources by either of the legal means. The State can take grant from the Centre for fulfilling this obligation by filling up all the vacancies of Assistant Teacher in the primary schools. This Court is not concerned how to fill up these posts but since a large number of writ petitions by the persons holding B. Ed., L.T. Degree are being filed in this Court and the State Government is aware of it, the State Government should think as early as possible in the terms to adopt such measures so that on one hand, the primary education may not suffer and that the children upto the age of 14 years should not be deprived of their fundamental right and on the other hand, the unemployed graduate holding the degree of B. Ed. and L.T. are given employment in the primary schools of Basic Shiksha Parishad.
14. This Court can notice of the official press conference which was held after the Cabinet meeting of the State Government. On 15.7.2003. the cabinet of the State has taken a decision that for giving appointment for the post of Assistant Teacher in primary schools, applications shall be invited from the holders of B. Ed. and L.T. degrees and after their selection, they will be imparted six months special training of B.T.C. and after they become eligible under rules, the post of Assistant Teacher of the primary schools shall be filled up. For that the Government has to make amendment in U.P. Basic Education (Teachers' Service) Rules, 1981 but even after the decision of the Cabinet, the State Administration has not taken any further steps and the result of it is that a large number of writ petitions are being filed by the holders of the degree of B. Ed. and L.T. for getting appointment on the post of Assistant Teacher in primary schools of Basic Shiksha Parishad. Therefore, at the time of disposal of these writ petitions, the State Government can be directed to implement the decision of the cabinet within three weeks by issuing an advertisement for inviting applications for special training of B.T.C. for holders of degree of B. Ed. and L.T., so that the flood of writ petitions (by filing writ petitions in this Court) may be prevented and that steps will be for filling up the obligation of the State by imparting free primary education on one hand and by giving employment to the trained teachers, who are holding degree of B. Ed. and L.T.
15. In view of the above, the aforesaid writ petitions are disposed of finally at admission stage with a direction to the Secretary, Basic Education, State of U.P. to take necessary steps for implementation of the decision of the Cabinet, if any, within a period of three weeks by carrying out necessary amendments in U.P. Basic Education (Teachers Service) Rules, 1981 and issuing an advertisement for special training of B.T.C. to the petitioners and similarly situated persons after taking approval of the National Council of Teachers Education within the aforesaid period so that B. Ed. and L.T. Degree holders graduates may be made eligible to apply for the post of Assistant Teachers in primary schools of Basic Shiksha Parishad and the entire process of filling up the post of Assistant Teachers in primary schools of Basic Shiksha Parishad may be carried out expeditiously.
16. Let a copy of this order be supplied to the learned Chief Standing Counsel within two days for sending it to the Government for compliance of this order free of charge.