Jitendra Kumar Soni and Others vs State of U.P. and Others

Arun Tandon, J.—Petitioner before this Court, who are 10 in number, have made applications for being admitted to Special B.T.C. Training Course-2007. Their candidature has been rejected only on the ground that they have obtained a degree of Bachelor of Physical Education (B.P.Ed)/ Diploma in Physical Education (D.P.Ed.) from the colleges/ University situate outside the State of Uttar Pradesh in view of the terms and conditions of the Government Order dated 14th November, 2008, regulating admission to B.T.C. Course-2007, specifically Clause 2(3), which reads as follows:

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The said condition is being challenged on the following grounds:

(a) The degree obtained by the petitioners is from a recognized University established by law, although situate outside the State of Uttar Pradesh. Such degree cannot be discriminate viz-a-viz the degree granted by an University of the State of Uttar Pradesh. It is, therefore, submitted that the classification itself is arbitrary. Reference in that regard has been made to the judgment of the Hon''ble Supreme Court in the case of Dr. B.L. Asawa Vs. State of Rajasthan and Others,

(b) It is contended that the condition imposed, referred to above, results in complete exclusion of students, who have obtained identical qualification from the Universities outside the State of Uttar Pradesh. He submits that although the State can exercise preference in respect of the students, who have obtained degree from the institutions within the State of Uttar Pradesh, but such preference cannot be so extensive so as to completely exclude all the students, who have obtained degree from the institution of other States, i. e. total exclusion. In support thereof he has placed reliance upon the judgment of the Hon''ble Supreme Court in the case of Dr. Sachin D. Kulkarni and Ors. v. Stae of Maharashtra and Ors. reported in (1989) 2 SCC 250.

(c) There is no reasonable justification for accepting the degree of B. Ed. granted by the Universities situate outside the State, while refusing the B.P. Ed., C.P. Ed. and D.P. Ed. degree granted by University situate outside the State. It is stated that in some cases the B. Ed. and B.P. Ed. and D.P. Ed. degrees have been granted by the same University situate outside the State.

Sri K.K. Chand, learned Standing Counsel on behalf of the State Government stated that vide order dated 16th July, 2004, passed in Writ Petition No. 2856(M/S) of 2004 Rajeshwar Singh v. State of U.P. and Ors. following questions were referred for consideration to the Full Bench:

In Upendra Rai''s case reported in 2000(2) U.P. LBEC 1340, the Division Bench of this Court has held that the restrictions imposed by the State Government are not valid and B.T.C. Certificate for appointment on the post of Assistant Teacher issued by an institute situated outside the State of Uttar Pradesh but recognised by the N.C.E.T. is valid. The other Division Bench judgment of this Court reported in (2003) 3 UPLBEC 2211 in Vijay Kumar Kushwaha''s case, upheld the government rights as well as Government Order which provides that the State has got right not to admit a candidate for appointment as Assistant Teacher in case the training certificate is provided by an institute situated out side the State of Uttar Pradesh. The provision of law as per Vijai Kumar Kushwaha''s case have been restricted in Lalit Kumar Dixit''s case reported in (2004) 1 UPLBEC 754 which Division Bench out of two lay down the correct law ?

The reference is pending, however, the Hon''ble Supreme Court in the case of U.P. Basic Education Board v. Upendra Rai reported in (2008) 1 UPLBEC 641 has reversed the judgment of this Court in the case of Upendra Rai (supra).

It is stated that since the SLP filed by the Board has been allowed and the judgment and order of the Division Bench of this Court in the case of Upendra Rai has been reversed, it logically follow that law laid down in the case of Vijay Kumar Kushwaha is correct law and therefore in terms of the judgment of the Division Bench in the case of Vijay Kumar Kushwaha the restriction imposed under the Government Order qua non-consideration of the candidates, who have obtained C.P. Ed. and B.P. Ed. Degree from the institutions from outside the State of Uttar Pradesh, has to be upheld. Reference has also been made to the judgment of the Hon''ble Single Judge in the case of Hena Afroj v. State of Uttar Pradesh and Ors. in Writ Petition No. 2933 of 2004 where in similar restriction in respect of B.T.C. Course-2004 has been upheld.

Standing Counsel submits that it is within the competence of the State to lay down the policy guidelines for admission to Special B.T.C. Course-2007. The State in its wisdom has decided to consider only those candidates who have obtained C.P.Ed., B.P.Ed. and D.P.Ed. degree from the institutions situate within the State of Uttar Pradesh. Such policy decision cannot be examined under Article 226 of the Constitution of India nor can be said to be violative of Article 14 of the Constitution of India, as has been held by the Division Bench of this Court in the case of Vijay Kumar Kushwaha.

I have heard learned Counsel for the parties and have gone through the records of the writ petition.

It is no doubt true that the reference, as has been made qua the conflict between the judgments in the case of Vijay Kumar Kushwaha and Upendra Rai, stands diluted in view of the fact that the judgment of the Division Bench of this Court in the case of Upendra Rai has been overruled vide judgment of the Hon''ble Supreme Court in the case of U.P. Basic Education Board v. Upendra Rai (supra). One aspect of the matter, which still requires consideration and which has been more appropriately noticed in the order of the Hon''ble Single Judge dated 02.01.2008 passed in Writ Petition No. 53711 of 2007 Harkesh Singh and Anr. v. State of U.P. and Anr. is as follows:

The issue as to whether the State is competent to put any such restriction and as to whether when there is no such restriction with regard to the candidates who have obtained the B.Ed. degree from out side the State of Uttar Pradesh could the B.P. Ed., C.P. Ed. and D.P. Ed. be excluded has arisen for consideration in this case. The question which has been referred to in the Full Bench has direct bearing on the issues which have been raised in this writ petition. When the issues which have arisen for consideration in this case have already been referred to the Full Bench, it is appropriate that these writ petitions be finally decided after the above reference is answered.

From a reading of the judgment of the Division Bench in the case of Vijay Kumar Kushwaha as well as the judgment of the Hon''ble Supreme Court in the case of U.P. Basic Education Board v. Upendra Rai this Court finds that the issue, as noticed above, has not been examined and the competence of the State Government to impose such restrictions in respect of the B.P. Ed., C.P. Ed. and D.P. Ed. degree only while accepting the B. Ed. degree granted by out of State Universities still needs to be examined.

There is absolutely no material on record which could justify such a different treatment between the degree of B. Ed. obtained from an institution/University established by law of other State, recognized by the N.C.T.E. viz-a-viz the degree of C.P. Ed., B.P. Ed. and D.P. Ed. obtained from the institution/Universities established by law, recognized by the N.C.T.E. of other States.

In the opinion of the Court, every decision of the State has to be based on some reasons. The State has to answer as to why a decision has been taken to differentiate between the students who have obtained degree of B. Ed. from the institutions of other States viz-a-viz the students who have obtained degree of B.P. Ed., C.P. Ed. and D.P. Ed. from the institutions of the other States.

The Court may at this stage refer to the judgment of the Hon''ble Supreme Court in the case of Dr. B.L. Asawa Vs. State of Rajasthan and Others, wherein in paragraph 11 the Hon''ble Supreme Court has held as follows:

...A Post-graduate Medical Degree granted by a University duly established by statute in this country and which has also been recognised by the Indian Medical Council by inclusion to the Schedule of the Medical Council Act has ipso facto to be regarded, accepted and treated as valid throughout our country.

Although in the aforesaid case the Hon''ble Supreme Court was considering the issue of a post-graduate degree granted by the Medical College of the State of Bihar being recognized by the State of Rajasthan for the purpose of appointment in medical services of the State of Rajasthan, however the passage quoted above clearly indicates that once a degree is granted by the University established by law and recognized by the apex authority like Medical Council of India, such degree should be treated as valid throughout the country. Same principle would apply to professional degrees of B.P. Ed., C.P. Ed. and D.P. Ed. obtained from an Institution/University established by law and recognized by National Council of Teacher Education, which is the apex body constituted under the Central Act for the purpose.

In view of the aforesaid, this Court feels that the following issue needs to be examined by a Larger Bench of this Court:

(a) Whether the degree obtained by an student from an institution/university established by law, situate at a place out side the State of Uttar Pradesh but duly recognized by the N.C.T.E. can be refused acceptance as valid qualification for being admitted to B.T.C. Course-2008 by the State.

(b) Whether the classification under the Government Order between the degree of B. Ed. obtained from other State being valid for admission to B.T.C. Course-2008, while the degree of C.P. Ed., B.P. Ed. and D.P. Ed. similarly obtained from the institutions situate outside the State of Uttar Pradesh being invalid for considered for admission to B.T.C. Course-2008 is arbitrary and without any reasonable rational and therefore hit by Article 14 of the Constitution of India.

Let the records of this petition along with connected matters be placed before the Hon''ble The Chief Justice for constitution of the Larger Bench at the earliest, inasmuch as in the opinion of the Court the controversy needs to be resolved soon as the fate of the candidates like the petitioner is hanging in balance.