Judgment:
ORDER
1. In the writ petitions the constitutional validity of Explanation 5, Rule 9(b) and Rule 9(c) of M.P. Panchayat Samvida Shala Shikshak (Employment and Condition of Contract Rules), 2005 (hereinafter to be referred to as 'the Rules') and corresponding pari materia Rules called M.P. Nagriya Nikay Samvida Shala Shikshak (Employment and Condition of Contract Rules), 2005 (hereinafter referred to as 'Rules') has been assailed.
2. Facts are being referred to from W.P. No. 10200/2006. The petitioners applied for appointment as contract teacher Grade III pursuant to the advertisement published in Rojgar and Nirman dated 8-5-2006 having qualification of B.A. and B.Ed. The grievance of the petitioners is that Rule 9(c) of the Rules provide 20 marks to be awarded to the candidates of:
- Samvida Shala Shikshak Grade I for B.Ed./B.Ed. (Special Education)
- Samvida Shala Shikshak Grade II for B.Ed/B.Ed. (Special Education)/B.T.C./D.Ed./D.S.E.
- Samvida Shala Shikshak Grade III for D.Ed./B.T.C./D.S.E.
20 marks of experience of educational qualification are not to be awarded to the B.Ed. incumbent, when he submits an application for contract teacher Grade III to teach at primary level. It has also been submitted that under Explanation 5 to Sub-rule (b) of Rule 9 of the aforesaid rules, the teaching experience of Class 9 to 12, 6 to 10 and 1 to 8 shall be accepted for contract teacher Grade I, Grade II and Grade III respectively. Maximum of 15 marks shall be awarded for teaching experience in any school. For experience of one year, two years and three years, 5, 10 and 15 marks shall be awarded respectively, as provided in Rule 9(b). The teachers who have teaching experience of class 9 to 12, are not entitled for award of marks of experience for class 1 to 8. It is submitted that qualification of B.Ed. is superior qualification and ought to have been accepted for grant of 20 marks. Even for contract teacher Grade III, the qualification for which marks are to be awarded is D.Ed./B.T.C./D.S.E., B.Ed. has been excluded, there is no rationale behind it. It is further submitted that petitioner has experience of teaching class 9 and 10 but he has not been awarded the experience marks on the basis of class 9 and 10 for the post of contract teacher Grade III, supposed to teach at primary level, thus the action is violative of Article 14 of the Constitution of India. The benefit is being given to the diploma holders, there is per se discrimination, thus the aforesaid rules be struck down.
3. In the return filed by the respondents it is submitted that the aforesaid rules have been framed with the objective to provide efficient teachers to impart education at primary and secondary level. The provisions are neither discriminatory nor arbitrary. Considering the qualification required for a particular post and the expertise, the aforesaid qualification has been prescribed. Contract teacher Grade III is recruited to impart education at primary level, considering the skill required for primary level, the aforesaid criteria has been laid down. Reliance has also been placed on the directives issued by National Council of Teacher Education as per notification (R-2) issued on 3-9-2001.
4. Learned Counsel for the petitioners have submitted that the aforesaid rules are discriminatory and differentiation created has no rationale behind it. The qualification of B.Ed. is superior qualification as compared to D.Ed./B.T.C./D.S.E., thus the weightage ought to have been given at primary level also for such qualification. Similarly the experience for teaching in higher classes ought to have been considered for grant of marks of 'teaching experience' at primary level also. Consequently the Explanation 5 of Sub-rule (b) of Rule 9 and Rule 9(c) deserve to be quashed being ultra virus and unconstitutional as the aforesaid rules violates the mandate of Article 14.
5. Shri Samdarshi Tiwari, learned Govt. Advocate for respondents/State of M.P. has submitted that the directives issued by National Council of Teacher Education in notification dated 3-9-2001 make it clear that for appointment of teachers for primary classes, basic teachers' training programme of 2 years' duration is required, B.Ed. is not a substitute for basic teachers' training programme. He has also relied upon D.Ed, syllabus for Madhya Pradesh and Chhattisgarh and syllabus of B.Ed. course in order to objectively satisfy this Court that the programme of D.Ed./B.T.C./D.S.E. is specially designed for taking care of students of primary level, to understand children's psychology and their development whereas in B.Ed. programme course there is no such emphasis on the child's development, emphasis is on higher skill education, thus teachers who have obtained the qualification of D.Ed./B.T.C./D.S.E. which are inter se equivalent qualification are being preferred in the matter of grant of weightage marks of the educational qualification as per Explanation 5 of Rule 9(b). As per rule the teaching experience of class 9 to 12 is being considered for contract teacher Grade I, the teaching experience of class 6 to 10 is being considered for contract teacher grade II and the teaching experience of class 1 to 8 is being considered for contract teacher Grade III respectively, as skill required for teaching the aforesaid classes is different. The marks of teaching experience are being awarded on intelligible basis. The qualification that has been prescribed has the rationale behind it of awarding marks of experience to the person who is having the qualification to teach particular class which require different skill otherwise primary teacher would also obtain the marks for experience for teaching at the higher level selection and vice versa, that would create anomalous position, thus the rules cannot be said to be arbitrary, there is object behind it and it is permissible to make classification, thus the aforesaid rules cannot be said to be ultra virus or palpably arbitrary.
6. Before dilating upon the merit, we deem it appropriate to consider principle of law enunciated by the Apex Court, while dealing with the scope of equal protection under Article 14. The Apex Court in Ameerunnissa Begum and Ors. v. Mahboob Begum and Ors. : [1953]4SCR404 , has laid down that mere differentiation or inequality of treatment does not per se amount to discrimination, and it is necessary to show that the selection or differentiation is unreasonable or arbitrary and that it does not rest on any rational basis having regard to the object which the legislature has in view in order to invalidate an enactment under Article 14. In Bidi Supply Co. v. Union of India and Ors. 1956 SC 479, the Apex Court has laid down in order to pass the test of permissible classification two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (2) that differentia must have a rational relation to the object sought to be achieved by the Statute in question. In Cochin Devaswom Board, Trichur v. Vamana Setti and Ors. : [1966]3SCR724 , the Apex Court emphasized that a person relying upon the plea of unlawful discrimination which infringes a guarantee of equality before the law or equal protection of the laws must set out with sufficient particulars his plea, showing that between the persons similarly circumstance, discrimination has been made which is founded on no intelligible differentia. If the claimant for relief establishes similarity between persons who are subjected to a differential treatment, it may lie upon the State to establish that the differentiation is based on a rational object sought to be achieved by the Legislature. In Probhudas Morarjee Rajkotia and Ors. v. Union of India and Ors. : AIR1966SC1044 , the Apex Court has laid down that to make out a case of denial of the equal protection of the laws under Article 14 of the Constitution, a plea of differential treatment is by itself not sufficient. An applicant pleading that Article 14 has been violated must make out that not only he had been treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis, and such differential treatment is unjustifiable one. In Danthuluri Ramaraju and Ors. v. The State of Andhra Pradesh and Anr. : [1972]2SCR900 , the Apex Court has laid down that the rate of cess prescribed for each division has a rational nexus with the object of the Act and is based on intelligible differentia. In Om Kumar and Ors. v. Union of India, 2001 SCC (L & S) 1039, reliance has been placed on Para 32, wherein it has been observed that so far as Article 14 is concerned,the Courts in India examined whether the classification was based on intelligible differentia and whether the differentia had a reasonable nexus with the object of the legislation. In case the action is arbitrary, it can be struck down under Article 14. In State of M.P. and Anr. v. Dharam Bair : [1998]3SCR511 , the Apex Court had laid down that the experience gained by the respondent on account of his working on the post in question for over a decade cannot be equated with educational qualifications required to be possessed by a candidate as a condition of eligibility for promotion to a higher post. If the Government, in exercise of its executive power, has created certain posts, it is for the Government to prescribe the mode of appointment or the qualifications which have to be possessed by the candidates before they are appointed on those posts. The qualifications would naturally vary with the nature of posts or the service created by the Government. The educational qualification has a direct nexus with the nature of the post. The administrative experience cannot be teated as equivalent to his knowledge in the field of teaching. In K. Thimmappa and Ors. v. Chairman, Central Board of Directors, State Bank of India and Anr. (2001) 2 SCC 259, test of permissible classification was restated by the Apex Court. In Kailash Chand Sharma v. Slate of Rajaslhan and Ors. : [2002]SUPP1SCR317 , the Apex Court has struck down the weightage on the basis of place of residence which was given to the teachers in Panchayat schools. Grant of bonus marks to the resident of district concerned and rural areas was held to be discriminatory. The reasons given by the parties to justify the said provisions, were held to be either nonexistent or irrelevant and had no nexus with the object sought to be achieved viz., spread of education at primary level. It was further held that affirmative action to provide better employment opportunities to people of rural backward areas is not impermissible provided it seeks to achieve overall equality and is supported by scientific study and considerations germane to the constitutional guarantee of equality.
7. Before we dilate upon the provisions of the rules and the submission raised, we deem it appropriate to refer other decisions of Apex Court which have more or less direct bearing with the controversy involved in the instant petitions. In P.M. hatha and Anr. v. State of Kerala and Ors. : [2003]2SCR653 , the Apex Court has considered the question of B.Ed. qualification being a higher qualification than TTC, rejected the submission that B.Ed. candidates should be held to be eligible to compete for the post. The Apex Court has observed that special skill is required for the post of teaching at primary level and B.Ed. cannot be said to be equivalent to TTC, which is essential one. The Apex Court has held thus:
10. We find absolutely no force in the argument advanced by the respondents that B.Ed. qualification is a higher qualification than TIC and therefore, the B.Ed. candidates should be held to be eligible to compete for the post. On behalf of the appellants, it is pointed out before us that Trained Teacher's Certificate is given to teachers specially trained to teach small children in primary classes whereas for B.Ed. degree, the training imparted is to teach students of classes above primary. B.Ed. degree-holders, therefore, cannot necessarily be held to be holding qualification suitable for appointment as teachers in primary schools. Whether or a particular post, the source of recruitment should be from the candidates with TTC qualification or B.Ed. qualification, is a matter of recruitment policy. We find sufficient logic and justification in the State prescribing qualification for the post of primary teachers as only TTC 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.
13. Equity and law are twin brothers and law should be applied and interpreted equitably but equity cannot override written or settled law. The Division Bench forgot that in extending relief on equity to B.Ed. candidates who were unqualified and yet allowed to compete and seek appointments contrary to the terms of the advertisement, it is not redressing the injustice caused to the appellants who were TTC candidates and would have secured a better position in the rank list to get appointment against the available vacancies, had B.Ed. candidates been excluded from the selections. The impugned judgment of the Division Bench is both illegal, inequitable and patently unjust. The TTC candidates before us as appellants have been wrongly deprived of due chance of selection and appointment. The impugned judgment of the Division Bench, therefore, deserves to be set aside and of the learned Single Judge restored.
8. In Yogesh Kumar and Ors. v. Govt. of NCT, Delhi and Ors. : [2003]2SCR662 , the aforesaid decision of P.M. hatha and Anr. v. Stale of Kerala and Ors. was relied upon and in the context of appointment of Assistant Teacher, Municipal Corporation Delhi under the rules, it was held that B.Ed. teachers were rightly excluded from the eligibility criteria. It was held that TTC cannot be said to be higher qualification but for the purpose of teaching at primary level a special skill is required, which has been obtained by the incumbents possessing the TTC certificate. The Apex Court has held thus:
5. The Division Bench of the Delhi High Court in the impugned judgment has dealt with the above two arguments in great detail. In our considered opinion, it has rightly come to the conclusion that B.Ed. qualification, although a well recognised qualification in the field of teaching and education being not prescribed in the advertisement, only some of the B.Ed. candidates who took a chance to apply for the post cannot be given entry in the field of selection. We also find that the High Court rightly came to the conclusion that teacher training imparted to teachers for B.Ed. course equips them for teaching higher classes. A specialized training given to teachers for teaching small children at primary level cannot be compared with training given for awarding B.Ed. degree. Merely because primary teachers can also earn promotion to the post of teachers to teach higher classes and for which B.Ed. is the prescribed qualification, it cannot be held that B.Ed. is a higher qualification than TTC. Looking to the different nature of TTC qualification, the High Court rightly held that it is not comparable with B.Ed. degree qualification and the latter cannot be treated as higher qualification to the former.
9. Rule 9 of the Rules is pari materia and identically worded for urban as well as panchayat areas, same is quoted below:
9. Criteria of Selection.-- After the scrutiny of the applications received by Employing Authority, the categorywise merit list of the candidates belonging to unreserved category, Scheduled Castes, Scheduled Tribes and Other Backward Classes shall be prepared. For preparing the merit list, a maximum of 100 marks shall be awarded as under:
(a) A maximum of 5 marks shall be awarded to the candidate in proportion to the marks obtained by him/her in the Samvida Shala Shikshak Eligibility Examination;
(b) A maximum of 15 marks shall be awarded for teaching experience in any school. For experience of one year, two years and three years, 05, 10 and 15 marks shall be awarded respectively.
Explanation:-- (1) Teaching experience means an experience of teaching in Government Schools, Local Body (Panchayat/Urban Body) Schools, Schools receiving Grant-in-aid from Government, Education Guarantee Schools, erstwhile Non-Formal Education Centres of the Government. Teaching experience also includes experience as an honorary teacher appointed by the Government.
(2) Marks for experience shall be awarded on the basis of a certificate issued by District Education Officer/Assistant Commissioner/District Organiser, Tribal Welfare in case of teacher of Government School, School receiving Grant-in-aid from Government and erstwhile Non-Formal Education Centres of Government, by District Project Coordinator in case of Education Guarantee Schools, by Chief Executive Officer of concerned Panchayat in case of Panchayat Schools, by Officer authorized by the Urban Local Body in case of Urban Local Body School and by District Education Officer/Assistant Commissioner/District Organiser, Tribal Welfare in case of honorary teachers appointed by the Government.
In case of a School receiving Grant-in-aid from Government, experience certificate will be issued to those teachers only, whose salary has been paid from Grant-in-aid, only for that period for which salary was paid from the Government Grant-in-aid.
(4) A minimum experience of 8 months' duration in an academic year shall be required for being counted as an experience of one year. No marks shall be awarded for an experience of less than 8 months' duration.
(5) The Teaching experience of Classes 9 to 12,6 to 10 and 1 to 8 shall be accepted for Samvida Shala Shikshak Grade-1, Grade-2 and Grade-3, respectively.
(c) 20 Marks shall be awarded to the candidate of each Samvida Shala Shikshak Grade-I for B.Ed./B.Ed. (Special Education), Samvida Shala Shikshak Grade-II for B.Ed./B.Ed. (Special Education)/B.T.C./D.Ed./D.S.E. and Samvida Shala Shikshak Grade-III for D.Ed./B.T.C./D.S.E.
Explanation.- (1) In awarding marks to the candidates for holding required Degree/Diploma/Certificate with respect to the said training, the marks obtained by the candidates in the examination conducted for the said Degree/Diploma/Certificate shall not be taken into account.
(2) The candidates shall have to submit the mark sheet pertaining to the required Degree, Diploma Certificate with the application.
(3) The B.Ed. (Special Education) or D.S.E. should be recognized by Rehabilitation Council of India, New Delhi.
(d) In case of equal marks in the category wise merit list, preference shall be given in final selection to the candidate having obtained higher marks in the eligibility examination and even after that, if the situation of equality of marks arises then preference shall be given to the candidate who is older in age.
10. It is also necessary to consider notification (R-2) issued by National Council of Teacher Education on 3-9-2007 laying down the qualifications for primary, upper primary, secondary, senior secondary, alongwith it's note, same is quoted below:
Note:
1. For appointment of teachers for primary classes, basic teachers' training programme of 2 years' duration is required, B.Ed. is not a substitute for basic teachers' training programme.
2. Some of the States are having basic teachers training course of one year duration only, while in some other State students passing secondary level examination are admitted to primary level teacher training courses. Such States may, by 2005, conduct basic teacher' training programmes of a duration of not less than two years with admission being open to Senior Secondary/Intermediate pass candidates. In the meantime candidates who have undergone basic teachers' training courses of one year duration or were admitted to such training programmes after passing secondary level examination only may be given employment in the concerned States only.
Note (1) of the aforesaid notification makes it clear that for appointment of teachers for primary classes, basic teachers' training programme of 2 years' duration is required. B.Ed. is not a substitute for basic teachers' training programme. D.Ed, syllabus contains in first paper the special emphasis on the primary level education and development of child which is its paramount consideration. Second paper is related to child's psychology which contains several subjects with respect to child's development, factor affecting their psychology, problems of behaviour and mental health of child. Other papers also emphasize education at primary level. In paper 4 also there is special emphasis on child center education, methodology, schemes, valuation, teaching material required at that level, thus the overall development of children is the paramount consideration of the course content of D.Ed., B.T.C. and D.S.E. which are equal course whereas in B.Ed. emphasis is on higher education from class 9th to 12th. No subjects are being taught to the incumbents having B.Ed. qualification which are having special emphasis on the education at primary level, thus Rule 9(c) which excludes grant of weightage marks to the candidates having B.Ed. qualification is in tune with the note 1 of the aforesaid notification issued by National Council of Teacher Education. We have tested it objectively also with the course contents of B.Ed. and D.Ed, and we are satisfied that special skill is possessed by D.Ed./B.T.C./D.S.E. candidates to impart education at primary level to the children obtaining instructions at that level. Though differentiation is made under the rules in eligibility for awarding marks but that is based on intelligible classification, which is permissible within the ambit of Article 14 of the Constitution, it has nexus with the object sought to be achieved under the provision by specially emphasizing on D.Ed./B.T.C./D.S.E. qualification for primary level and giving weightage to it, though the teachers having B.Ed. degree are having qualification to teach higher classes but they are not having special skill to teach at primary level. 20 marks which have been reserved as per Rule 9(c) have been rightly reserved for special category of candidates having special skill to impart primary education, the incumbents having B.Ed. degree have not been totally excluded from staking their claim but they are not to be awarded marks of special educational qualification as they are not having expertise qualification to teach at primary level. Though they may be having qualification to teach at higher level but B.Ed. is not the higher qualification to teach at primary level but special skill for the purpose of teaching at primary level as held by the Apex Court in aforesaid decisions.
11. Coming to the second limb of the submission ralting to the marks of experience. Explanation 5 of Rule 9(b) provides that the teaching experience of Classes 9 to 12, 6 to 10 and 1 to 8 shall be accepted for Samvida Shala Shikshak Grade-1, Grade-2 and Grade-3, respectively. A maximum of 15 marks shall be awarded for teaching experience in any school. For experience of one year, two years and three years, 05, 10 and 15 marks shall be awarded respectively. There is rationale behind the aforesaid rule also as the teachers who are supposed to teach particular class should have teaching experience of that very level/classes and consequently they are awarded the marks, otherwise the teachers who have taught only at primary level will be entitled in case provision is held to be arbitrary for having experience at the level of classes 9 to 12 also and vice-versa, whereas different skill is necessary for imparting the education at different level. Thus we find that intelligible classification has been made and teaching experience marks are being awarded rightly for the kind of experience which is possessed for the particular post of contract teacher grade I, II and III to teach the very class of which they are having the experience, thus it cannot be said that there is arbitrariness violating Article 14 of the Constitution of India in the aforesaid Explanation 5 to Rule 9(b) of the aforesaid rules, thus the submission fails. Resultantly, petitions being devoid of merit, are hereby dismissed. However, appointment made of any of the petitioners are not being disturbed. Parties to bear their own costs as incurred of these petitions.