Shri Ram Bishnoi and ors. Vs. State of Rajasthan and ors. - Court Judgment

V.G. Palshikar, J.

1. This bunch of writ petitions can be conveniently heard and disposed of together as they involve identical questions of fact and law. The cases decided by this judgment are mentioned in the Schedule attached to this order.

2. Facts giving rise to these petitions stated briefly are that advertisement was issued by various Zila Parishads for recruitment to Grade III Teacher in the Zila Parishads. The advertisement was duly published in the local news paper. It stipulates the number of vacancies, the qualifications, the eligibility conditions etc. and it pertained to recruitment for the year 1998. The educational qualification required by the advertisement was Higher Secondary School Certificate or equivalent with subjects of Mathematics, English and Hindi and B.S.T.C. qualification. The advertisement published in vernacular reads thus:

;ksX;rk%&

1- ek/;fed f'k{kk cksM+Z jktLFkku ls u;h 10$2 Ldhe ds v/khu lhfu;j lSds.M+jh ;k iqjkuh Ldhe ds v/khu gk;j lsds.M+jh ;k led{k vkSj ek/;fed f'k{kk cksM+Z] jktLFkku ls 5 fo'k;ks ftues rhu fo'k; xf.kr] vaxzsth vkSj fgUnh gksxs lfgr lSds.Mjh Ldwy izek.k i= ;k led{k A

2- ch-,l-Vh-lh- ikB~;dze

It will thus be seen that the offer of employment as published by various Zila Parishads stipulated Higher Secondary School Certificate and B.S.T.C. as the basic qualifications making eligible a candidate for consideration for public employment as contemplated by Article 16 of the Constitution.

3. It would be worthwhile to take note of the law pertaining to recruitment under various Zila Parishads of Panchayat Samities as it existed in the State of Rajasthan in the year 1998. The entire Panchayati Raj Institution including Zila Parishads and the Panchayat Samities are governed by the provisions of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as 'the Act of 1994'). Section 80 of this Act empowers the State Govt. to prescribe the scales of pay and allowances of employees of the Panchayat Institutions. Section 102 empowers the State Govt. to make rules in this behalf including the rule making for the purpose of determining the conditions of service and employment under the Panchayati Raj. The rules as per law are required to be laid before the House for its legislature and if not approved or if not laid, shall cease to have the force of law. Accordingly, rules have been framed by the State for this purpose and Rule 266 of the Rules provides the academic qualification which a person must possess for recruitment on the post of Primary School Teacher. The rule as it initially stood stipulates that recruit must possess minimum qualification as under:

Primary School Senior Secondary with Teacher(100% B.S.T.C. course.)

It is pertinent to note that the B.S.T.C. Course has not been defined anywhere in these rules.

4. This rule was thereafter amended on 7.5.1998 and Sub-rule (3) was added to Rule 266 and the qualification of Senior Secondary was defined exhaustively. However, the B.S.T.C. Course was not explained. Thus, according to the latest rules operating in June, 1998 qualification required for Teachers in Panchayati Raj was only certificate of Senior Secondary with the subjects of Mathematics, English and Hindi and B.S.T.C. Course. It is undisputed in these cases that B.S.T.C. Course the basic qualification required for Primary Teachers and the Degree of Bachelor Education or Degree of Bachelor of Physical Education is a higher qualification than B.S.T.C. According to the law, therefore, a person for being eligible for consideration to a public employment as Primary Teacher must possess the Secondary School Certificate and the B.S.T.C. Course. The advertisement issued by various Zila Parishads in June, 1998 for the purpose of recruitment conformed with these requirement of law.

5. It will also be necessary for proper adjudication of these petitions to note various enactments made by the Govt. of India in 1993 or thereabout. The Union of India enacted in the year 1993 the National Council for Teacher Education Act, 1993 (hereinafter referred to as 'the Act of 1993') to consolidate the provisions in regard to recruitment of Teachers in various educational institutions and to provide for National Council for Teachers Education. The Act was made applicable to the State of Rajasthan w.e.f. 1.7.1995. Regulations were framed under the Act of 1993 and were published in the Official Gazette of the Govt. of India on 24.2.1996. These regulations fixed 15.5.1997 as the last date for making applications for recognition by the institutions imparting institutions in the matter of obtaining a certificate as Teacher such as institutions giving Diploma or Degrees to Teachers like Barktullah Khan University, Bhopal, which confer Degree of Bachelor of Education; Mithila University at Bihar, which confer Degree of Bachelor of Education. The last date was then extended to 18.8.1997 and the provisions of the Act of 1993 and the regulations framed thereunder to institutions in India duly ceased for grant of certificate or Diploma or Degree etc. to Teachers was 18.8.1997.

6. Section 17 of the Act of 1993 provides for consequences in the event of not recognition or denial of recognition by the Council under the provisions of the Act of 1993. One of the consequences of such denial of recognition was failure to obtain recognition is that a person holding any qualification or certificate from such unrecognised institution will not be entitled to employment as a Teacher anywhere after the commencement of the Act of 1993.

7. It is in light of this legal background and factual position that this bunch of petitions will have to be decided. Factually the petitioners can be categorised into four categories as under:

(i) Persons who have not been considered at all as they are holding their qualification from institutions, who have not obtained or have failed to obtain the recognition under the National Council for Teachers Education Act, 1993.

(ii) Those persons who hold such qualifications and were considered for recruitment but were not selected on the ground that the qualifications held by them do not conform to the standard required by the National Council for Teacher Education Act, 1993.

(iii) Persons considered and selected for appointment but not given appointment on the ground that the educational qualification acquired by them through institutions not recognised under the National Council for Teacher Education Act, 1993; and

(iv) Persons who were given appointment on the basis of those qualifications but their certificates are now sought to be terminated because their qualifications are not in conformity with the provisions of the National Council for Teacher Education Act, 1993.

8. It is not disputed that the qualifications claimed to be equivalent or higher to B.S.T.C. as required by the rules in Rajasthan and the only dispute is relating to the recognition of those qualifications as per the provisions of the Act of 1993. It is also not disputed that the educational qualifications have been acquired by these persons after having successfully admitted to the respective course for the academic session for the year 1995-96 and have acquired degree or diploma thereafter. The basic question which arises for consideration in the circumstances narrated above on application of the correct legal position is whether a person who has acquired the teaching qualification prior to 15.5.1997, the last date by which application for recognition was to be made under Act of 1993 could be denied consideration for public employment on the ground that by subsequent action under the Act, the institution from which such qualification was acquired, have not been recognised or have failed to acquire recognition. Putting in other words can the non-recognition under Section 17 of the Act of 1993 can have retrospective effect and operation.

9. Section 17 reads as under:

17. (1) Where the Regional Committee is, on its own motion or on any representation received from any person, satisfied that a recognised institution has contravened any of the provisions of this Act, or the rules, regulations, orders made or issued thereunder, or any condition subject to which recognition under Sub-section (3) of Section 14 or permission under Sub-section (3) of Section 15 was granted, it may withdraw recognition of such recognised institution, for reasons to be recorded in writing:

Provided that no such order against the recognised institution shall be passed unless a reasonable opportunity of making representation against the proposed order has been given to such recognised institution:

Provided further that the order withdrawing or refusing recognition passed by the Regional Committee shall come into force only with effect from the end of the academic session next following the date of communication of such order.

(2) A copy of every order passed by the Regional Committee under Sub-section (1),-(a) shall be communicated to the recognised institution concerned and a copy thereof shall also be forwarded simultaneously to the University or the examining body to which such institution was affiliated for cancelling affiliation; and

(b) shall be published in the Official Gazette for general information.

(3) Once the recognition of a recognised institution is withdrawn under Sub-section (1), such institution shall discontinue the course or training in teacher education, and the concerned University or the examining body shall cancel affiliation of the institution in accordance with the order passed under Sub-section (1), with effect from the end of the academic session next following the date of communication of the said order.

(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.

A perusal of the Section narrated above, proves that there is nothing in the Act to show that the provisions are retrospective and they cannot be so held by the necessary implication also. It is for the simple reason that the Act by their scheme for which and prescribed in the nature and is enacted for the purpose of effecting and co-ordinating the matter of education to be given to Teachers under the provisions of the Act of 1993. The Act was not amended for the purpose of recognition acquired prior to the application of the Act. It is a principle of law that unless the language of the provision of law apply by express provision or by necessary implication require retrospective operation, the provision shall not be read as retrospective. The provision of Section 17 of the Act of 1993 read cohesively do not indicate such amended provision or necessary implication by recourse to the provision of this Section 17. It cannot, therefore, be said that the qualification equivalent to B.S.T.C. or higher acquired prior to 15.5.1997 stand or recognised (?) by reason of that section. That being the position in law, non-consideration of the persons who have acquired such qualification prior to 15.5.1997 or who have so appointed on the basis of such certificate prior to that date and have acquired certificate or degree or diploma thereafter are required to be considered. The respondents have committed a basic error of law in ignoring consideration of the candidature of these persons and where they have considered the candidature, they have committed an error in issuing notice to terminate the service of such persons. The non-consideration of these persons on the ground that the degrees or diplomas in education as acquired by them, could not have been verified also is a ground, which cannot be sustained on the part of the State to require verification cannot result in non-consideration of the persons candidature or cannot result termination in his service for that purpose.

10. It is, however, made clear that in each and every case where the respondents determine the genuineness of the degree or diploma or certificate tendered for consideration by a candidate, it would be open to the State to verify the genuineness of that certificate, degree or diploma and after giving adequate opportunity to show cause terminating the services of the persons so appointed on the basis of such degree. It is abundantly made clear that this judgment shall not in any manner hinder the State Govt. to verify such proof and if the certificate tendered for consideration for appointment on the post of Teacher Grade III in any institution or Panchayati Raj. However, present non-consideration or after consideration, not giving of appointment immediately because the degree as shown of the institution is not recognised as equivalent as required by Section 14 of the Act and, therefore, in view of Section 17 of the Act, not appointed, is an error, which requires to be corrected. In my opinion, all these petitions deserve to be allowed.

11. Accordingly, the writ petitions are allowed. The following directions are issued to the State:

(i) It is hereby directed that all certificate, degree or diploma claimed to be equivalent to B.S.T.C. and acquired prior to 15.5.1997 are liable to be considered for grant of appointment to the post of Teacher Grade III in accordance with the advertisement issued in June, 1998.

(ii) The respondents are directed to reconsider the entire recruitment process after giving consideration to the persons not considered for the above reasons and prepare a fresh list of merit and if they so desire issue fresh appointments in accordance with the list so prepared.

(iii) All the notices terminating the services of such Teachers for holding such certificate, diploma or degree from such institutions covered by Section 17(4) of the Act or whose certificate, diploma or degree could not be verified by the State are hereby quashed. It is further directed that the State shall always have the right to investigate into each and individual certificate, diploma or degree so tendered for consideration and it have the right to terminate the services of such individuals whose degrees, diploma or certificates are found to be either fraudulent or not inconformity with the direction at one above and terminate the services for such reasons. If in pursuance to the notices hereinbefore quashed, consequential terminations have been factually effected, the same are also hereby quashed and the persons so terminated are directed to be reinstated. There will be no order as to costs.