Chet Ram Gangwar vs State of U.P. and Others

Anil Kumar, J.—The core question to be decided in the present case is, whether the candidate not possessing degree of B.A. with Sanskrit but possessing degree of Sahitya Ratna (two years course) from Hindi Sahitya Sammelan, Allahabad is eligible for promotion-appointment as Lecturer (Hindi) to teach Classes XI and XII.

THE FACTS:

The uncontroverted facts of the present case are to the effect that in district Bareilly there is an institution known as Dhaniram Inter College, Damkhoda, Bareilly (hereinafter referred to as the institution) which is recognised and governed by the provisions of U.P. Intermediate Education Act, 1921 and provisions of Payment of Salary Act, 1971.

The Petitioner was appointed as Assistant Teacher in L.T. grade on 1.7.1981 (as Science teacher) in the institution and the qualification of the Petitioner is M. Sc. and M.A. in Hindi. Besides this the Petitioner has also passed Sahitya Ratna Pariksha (Dwitiya Pathyakram) from Hindi Sahitya Sammelan, Allahabad (Sahitya Ratna) and obtained a degree of L.T. on 27.7.1989.

Due to retirement of Sri Bhajan Lal Sharma Lecturer (Hindi) on 30.6.2006 a vacancy on the post of Lecturer Hindi arose in the institution.

There are six posts of Lecturer in the institution. Out of which three posts have been filled up by direct recruitment, one post filled up by promotion and two posts of Lecturer were vacant which are required to be filled up by way of promotion under 50% quota.

The Committee of Management on 23.6.2006 sent a proposal to the District Inspector of Schools, Bareilly for promotion of the Petitioner on the post of Lecturer (Hindi) under the promotional quota post. Later on 30.6.2007, Adhiyachan for promotion on the post of Lecturer (Hindi) was also sent by the Manager of the institution to the Regional Level Committee through District Inspector of Schools, Bareilly. On 1.10.2007 the District Inspector of Schools, Bareilly forwarded the said proposal of the Petitioner for promotion on the post of Lecturer (Hindi) to the Regional Level Committee, Respondent No. 2.

By the order dated 18.10.2007 the Regional Level Committee, Respondent No. 2 had rejected the proposal on the ground that the Petitioner has not passed B.A. with Sanskrit as such he does not fulfil the requisite qualification for promotion on the post in question.

By means of the present writ petition, the Petitioner has prayed for quashing the order dated 18.10.2007 passed by the Regional Level Committee, Respondent No. 32 returning the proposal of the Petitioner promotion on the post of Lecturer in Hindi on the ground that the Petitioner does not possess the requisite qualification as provided in Chapter II, Appendix A of the Regulations framed under the U.P. Intermediate Education Act, 1921 and thus he is not eligible for promotion as Lecturer (Hindi) in institution.

Initially vide order dated 13.11.2007 this Court (Hon''ble Mr. Justice Ashok Bhushan) had dismissed the writ petition. Thereafter, an application for review of the judgment and order dated 13.11.2007 was filed by the Petitioner on the ground that the Petitioner could not cite an earlier judgment of learned single Judge of this Court in the case of Purshottam Das Agarwal v. District Inspector of Schools, Allahabad and another. (1999) 2 UPLBEC 1609. The Purshottam Das case, by which it was held that person possessing Sahitya Ratna and not having B.A. with Sanskrit is eligible for promotion as Lecturer (Hindi). Thus, the order dated 18.10.2007 passed by the Respondent No. 2 is contrary to the judgment passed in the case of Purshottam Das Agarwal.

After hearing the arguments advanced by counsel for the parties on the review application, the single Judge (Hon''ble Ashok Bhushan, J.) had come to the conclusion that mere fact that degree of Sahitya Ratna (two years course) is treated to be alternative minimum qualification as B.A. with Sanskrit for appointment as Assistant Teacher to teach IX and X Classes did not mean that it can be treated as its equivalent for minimum qualification for promotion as Lecturer (Hindi) to teach XI and XII Classes and a person not having the qualification of B.A. with Sanskrit is not eligible for being promoted to the post of Lecturer (Hindi), because he did not possess the requisite qualification as provided in Chapter II, Appendix A of the Regulations framed under the U.P. Intermediate Education Act, 1921. Thus, His Lordship (Hon''ble Ashok Bhushan, J.) did not agree with the view taken in the Purshottam Das case and passed an order that matter to be placed before Hon''ble The Chief Justice for considering the constitution of larger Bench for consideration of the following questions:

(i) Whether the judgment of learned single Judge in the case of Purshottam Das Agarwal v. District Inspector of Schools, Allahabad and another, (1999) 2 UPLBEC 1609, holding that a candidate not possessing B.A. with Sanskrit but possessing two years course of Sahitya Ratna from Hindi Sahitya Sammelan is eligible for promotion as Lecturer, Hindi, lays down the correct law?

(ii) Whether the qualification of two years course of Sahitya Ratna from Hindi Sahitya Sammelan can be treated a qualification for promotion as Lecturer, Hindi for the candidates who do not possess the qualification of B.A. with Sanskrit?

Accordingly, thereafter the matter was placed before us by Hon''ble The Chief Justice for adjudication of this case on merit.

We have heard Sri R. N. Singh, senior advocate and Dr. H. N. Tripathi, counsel for the Petitioner and Ms. Subhash Rathi, standing counsel for the Respondents.

Submissions:

The counsel for the Petitioner has submitted that the action on the part of the Regional Level Committee vide order dated 18.10.2007 in not approving the promotion of the Petitioner on the post of Lecturer in the institution on the ground that he does not possess B.A. with Sanskrit is against law and the same is not sustainable on the following grounds that:

(i) A plain reading of the Appendix of Chapter III of regulation framed under U.P. Intermediate Education Act, 1921 provides that in order to be a Lecturer (Hindi) in Intermediate College, a teacher should be M.A. in Hindi and B.A. with Sanskrit or Sashtriya from the Government Sanskrit College, Varanasi now Sampurnanand University, Varanasi. Admittedly the Petitioner did not have Sanskrit in B.A. nor is a Shastri from Sampurnanand University. For a high school teacher the qualification is B.A. in Hindi with Sanskrit or "Sahitya Ratna in Hindi with Sanskrit. Therefore, the Petitioner is qualified even as "Sahitya Ratna" for being appointed as a high school teacher even without being B.A. and M.A. in Hindi. The Petitioner is M.A. in Hindi and have degree of Sahitya Ratna (two years course) Hindi Sahitya Sammelan Prayag with Sanskrit, therefore, the qualification B.A. with Sanskrit as provided for a teacher in Intermediate Classes can very well be fulfilled by reason of the qualification of a High School Teacher.

(ii) When the State Government accepted that the degree of Sahitya Ratna from Hindi Sahitya Sammelan Prayag has been equivalent with B.A. with Sanskrit, the qualification B.A. with Sanskrit or Hindi teacher in Intermediate College has to be reconciled.

(iii) If such a stand is not taken, in that event the question of promotion would become discriminatory inasmuch as a person though qualified to be teachers in the high school in Hindi with "Sahitya Ratna" degree he could not be eligible for promotion though M.A. in Hindi and B.A. in Hindi only because he did not have Sanskrit in B.A.

The next submission of the counsel for the Petitioner is that the decision of the High Court in prevailing for a long settled position of law need not to be disturbed and in this regard he relied upon the following cases:

(i) Purushottam Das Agarwal Vs. District Inspector of Schools, Allahabad and another, (judgment delivered by Hon''ble D. K. Seth, J.).

(ii) Bishamber Dass Kohli (Dead) by Lrs. Vs. Satya Bhalla (Smt),

(iii) Duroflex Coir Industries Ltd. Vs. Assistant Commissioner (Assessment) of Sales Tax and Others,

(iv) Modula India Vs. Kamakshya Singh Deo,

(v) Thamma Venkata Subbamma (Dead) by Lr Vs. Thamma Rattamma and Others,

On the other hand, counsel for the Respondents has submitted that the order dated 18.10.2007 is perfectly valid on the ground,

(i) The Court cannot legislate on the subject, under the guise of interpretation against the will expressed in the enactment itself.

(ii) The Petitioner does not possess the qualification B.A. with Sanskrit. He possess Sahitya Ratna and as such he is not eligible to be promoted on the post of Lecturer (Hindi) in the institution.

(iii) The language of Chapter II, Regulation I, Appendix A of Regulations framed under the U.P. Intermediate Education Act, 1921, provides qualifications for appointment on the post of Lecturer Hindi to teach Classes XI and XII and for the post of Assistant Teacher to teach Class IX and X which requires no further interpretation.

The counsel for the Respondents has relied on the case laws:

(i) Vemareddy Kumaraswamy Reddy and Another Vs. State of A.P.,

(ii) Jinia Keotin and Others Vs. Kumar Sitaram Manjhi and Others,

(iii) Pandian Chemicals Ltd. Vs. Commissioner of Income Tax,

(iv) Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. and Others,

(iv) Dayal Singh and Others Vs. Union of India (UOI) and Others,

(v) J.P. Bansal Vs. State of Rajasthan and Another,

(vi) Nasiruddin and Others Vs. Sita Ram Agarwal,

Chapter II, Regulation I, Appendix A of the Regulation framed under the U.P. Intermediate Education Act, 1921 (Rule) provides qualifications for appointment on the post of Lecturer Hindi to teach Classes XI and XII and for the post of Assistant Teacher to teach Classes IX and X. It is as follows:

Findings:

A bare perusal of the Rule makes it clear that the Rule making authority while providing the qualification for promotion-appointment on the post of Lecturer (Hindi) had included M.A. in Hindi and B.A. with Sanskrit or Shastri Examination of Rajkiya Sanskrit College, Varanasi (now Sampurnanand Vishwavidyalaya, Varanasi. The qualification thus is post graduation in Hindi together with Sanskrit in B.A. or Shastri examination but degree of Sahitya Ratna (two years course) is not mentioned in the qualification prescribed for promotion-appointment on the post of Lecturer (Hindi) in Appendix A of the Rule.

It is in the domain of the rule making authority to lay down the qualification and other terms and conditions for appointment-promotion on a particular post and the Court should not interfere with the same. In this regard the Supreme Court in the case of Sanjay Kumar Manjul Vs. The Chairman, UPSC and Others, has held that:

The qualifications for recruitment to a post are laid down in terms of the statutory rules. The fourth Respondent raised a contention before the Tribunal that several persons named in Ground ''G'' of the writ petition had occupied the very post in the Archaeological Department, although they were experts in Epigraphy.

The statutory authority is entitled to frame the statutory rules laying down the terms and conditions of service as also the qualifications essential for holding a particular post. It is only the authority concerned which can take ultimate decision therefor.

The jurisdiction of the superior courts, it is a trite law, would be to interpret the rule and not of supplant or supplement of the same.

It is well-settled that the superior courts while exercising their jurisdiction under Article 226 or 32 of the Constitution of India ordinarily do not direct an employer to prescribe a qualification for holding a particular post.

Further in the case of Guru Nanak Dev University Vs. Sanjay Kumar Katwal and Another,

The first Respondent made a faint attempt to contend that the distance education system includes "correspondence courses" and therefore, recognition of M.A. (correspondence course) as equivalent to M.A. course of the Appellant University would amount to recognition of M.A., O.U.S. (distance education) course, as an equivalent. For this purpose, he relied upon the definition of "distance education system" in Section 2(e) of the Indira Gandhi National Open University Act, 1985. But there is nothing to show that Annamalai University has treated correspondence course and O.U.S. (distance education) course as the same. What is more important is that the Appellant University does not wish to treat the correspondence course and distance education course as being the same. That is a matter of policy. Courts will not interfere with the said policy relating to an academic matter.

It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the Legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words that are not there. Assuming there is a defect or an omission in the words used by the Legislature the Court could not go to its aid to correct or make up the deficiency.

The Courts decide what the law is and not what it should be. The Courts of course adopt a construction which will carry out the obvious intention of the Legislature but cannot legislate. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. The above said view is reiterated by the Hon''ble Supreme Court in the following cases:

(i) Union of India and Anr. v. Deoki Nandan Agarwal, AIR SC 96.

(ii) All India Radio Vs. Shri Santosh Kumar and Another,

(iii) Sakshi Vs. Union of India (UOI) and Others,

(iv) Pandian Chemicals Ltd. Vs. Commissioner of Income Tax,

(v) Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. and Others,

(vi) Dayal Singh and Others Vs. Union of India (UOI) and Others,

(vii) J.P. Bansal Vs. State of Rajasthan and Another,

In Nasiruddin and Others Vs. Sita Ram Agarwal, the Supreme Court has held that the Court can iron out the creases but cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain, unambiguous. It cannot add, subtract words to statute or read something into in which is not there. It cannot rewrite, recast legislation.

Accordingly, we hold that the qualification as provided in Appendix A of the Rule is mandatory in nature and a person who is to be appointed-promoted on the post of Lecturer (Hindi) to teach Intermediate Classes must possess the same.

Further non-mentioning of Sahitya Ratna two years course,while prescribing qualification for Lecturer (Hindi), cannot be said to be without any purpose when Regulation making authority is well aware of both the qualifications, i.e., Shastri Pariksha of Rajkiya Sanskrit College, Varanasi as well as degree of Sahitya Ratna and treats the former as an alternative qualification for B.A. with Sanskrit for the purpose of qualification of teachers for High School (IX-X classes) but did not include degree of Sahitya Ratna (two years course) from Hindi Sahitya Sammelan as alternative qualification with B.A. with Sanskrit for appointment/promotion to a person on the post of Lecturer (Hindi). To hold that degree of Sahitya Ratna (two years course) is equivalent to B.A. with Sanskrit, amounts to adding the words in the Regulation. To read then as qualification, though not provided in the Regulation, is not permissible under law. As such the submission made by counsel for the Petitioner in this regard is rejected.

The second submission of counsel for the Petitioner is that the State Government had accepted the degree of Sahitya Ratna from Hindi Sahitya Sammelan Prayag equivalent with B.A. with Sanskrit also got no force. In view of the findings given herein above and as in the present case the language of the Appendix A Rule is clear, so the intention of Legislature to be gathered from language used. In other words enactment must ordinarily be construed according to their plain meaning and no words shall be added, altered or modified unless it is necessary to do so as to prevent a provision from being unintelligible.

The third submission advanced by counsel for the Petitioner is that not treating Sahitya Ratna two years course from Hindi Sahitya Sammelan equivalent to B.A. with Sanskrit has discriminatory effect with regard to right of promotion of a teacher who is teaching High School Classes is also incorrect and cannot be upheld as it is not necessary that every teacher who is eligible to teach High School classes is entitled for promotion as Lecturer (Hindi) though he does not possess the requisite qualification as provided under the Rule. As such the qualification as provided in Appendix A of the Rule for appointment-promotion of a person on the post of Lecturer (Hindi) is neither discriminative nor violative of Article 14 of Constitution of India therein.

The next submission of the Petitioner is that the decision of the High Court prevailing and holding the field for a long time need not to be disturbed, is also not applicable in the present case, as only in the Purshottam Das case the High Court had taken the view that a person, who possess degree of Sahitya Ratna (two years course) from Hindi Sahitya Sammelan is equivalent to B.A. with Sanskrit and is eligible for promotion-appointment on the post of Lecturer (Hindi) to teach Classes XI and XII, thereafter neither any single case has been cited before us in which the above said view has been reiterated nor it has been brought to our notice by way of pleadings etc., that any single appointment has been made on the basis of the view taken in the Purshottam Das case.

Further in order to come within the ambit and scope of the proposition that the decision of the High Court holding for a long period need not to be disturbed, the view is to be consistently taken but as stated hereinabove the view which is taken in the Purshottam Das case is neither consistently taken nor the same has been followed in any case. As such the Petitioner cannot derive any benefit from the said proposition of law when admittedly he does not possess the requisite qualification as provided in Appendix-A of the Rule.

conclusion:

In view of the findings recorded by us hereinabove:

(i) The first question in answered in negative.

A teacher, who does not possess B.A. with Sanskrit but possess degree of Sahitya Ratna (two years course) from Hindi Sahitya Sammelan is not eligible for promotion as Lecturer (Hindi) to teach Classes XI and XII.

Thus, the Purshottam Das case does not lay down the correct law and is overruled.

(ii) The second question is also answered in negative.

The qualification mentioned in Chapter II, Regulation 1, Appendix A of the Regulation framed under the U.P. Intermediate Education Act, 1921 is mandatory.

The degree of Sahitya Ratan (two years course) cannot be treated as qualification for promotion-appointment on the post of Lecturer (Hindi) to teach Classes XI and XII.

In view of the findings recorded hereinabove the writ petition is dismissed. There is no order as to cost.