Manish Raj Pandey vs The Bihar State

Mihir Kumar Jha, J.—Heard learned counsel for the parties. The prayer of the petitioner in this writ application reads as follows:

(i) For issuance of a writ in the nature of Certiorari for quashing the letter No. 11/Bi 1-15/2012.362 dated 01.03.2013 as contained in Annexure-1 to this writ petition issued under the signature of Sri. Jitendra Prasad, Joint Secretary, Government of Bihar, Education Department, it is contradictory to the orders passed by Hon''ble Patna High Court. Patna in C.W.J.C. No. 6936 of 2009 on 6.8.2010 (Annexure-2) and others cases as well as contradictory to the rule/provision of Association of Indian Universities (Equivalent of Foreign Degrees), New Delhi.

(ii) For issuance of a writ in the nature of Mandamus directing and commanding the respondents to consider the applications of the petitioner for appointment against the Post of Teacher as valid applications and thereby consider his claim with other applicants and if found otherwise eligible for appointment against such post a direction be issued to appoint him on the post of teacher in the respective districts for which he has applied.

(iii) For issuance of an appropriate writ directing and commanding the respondents not to issue appointment letters and/or not to appoint any candidates on the post of teacher in Saran, Bhojpur, Kaimur, Buxar and Aurangabad districts. In the alternative the respondents be directed to keep one post reserved for the petitioner till the disposal of the present writ petition.

Mr. Anil Kumar, learned counsel for the petitioner, in support of the aforementioned prayer, has basically relied on the communication of Association of Indian Universities dated 17/18.4.2013 as also the letter of the Tribhuvan University dated 10.4.2009 to contend that the degree of Bachelor of Education (B.Ed.) from Tribhuvan University is a recognized degree in India and as such the impugned decision dated 01.03.2013 passed by the Joint Secretary to the Government of Bihar in the Department of Education informing all the District Education Officers that any candidate, having B.Ed. degree from Tribhuvan University, is not eligible in terms of Rule 4(iii) of the Bihar Zila Parishad Secondary and Higher Secondary Teacher (Employment & Service Conditions) Rules, 2006 (hereinafter referred to as ''the Rules of 2006'') and is bad both on fact and in law. In this regard, reliance has also been placed by him on an order of this Court dated 06.08.2010 in CWJC No. 6936 of 2009, which according to the learned counsel for the petitioner also covers the case of the petitioner.

Mr. Madhuresh Prasad, learned G.P. 12, on the other hand, has supported the impugned order passed by the State Government by taking a plea that the qualification laid down under the Rules of 2006 specifically provides that the candidates obtaining B.Ed. degree must have acquired the same from the Institutions which have been approved/recognized by the National Council for Teacher Education (hereinafter referred to as ''the NCTE''). He has also submitted that the question of equivalence of degree cannot be pressed into action when selection is to be made as per the norms laid under the statutory rules.

In the considered opinion of this Court the main question which would emerge for consideration is as to whether the impugned letter of the Joint Secretary of the Human Resources Development Department dated 1.3.2013 by way of clarification of all the District Education Officers of this State is contrary to the provisions made in the Bihar Zila Parishad Madhyamik & Uchatar Madhyamik Shikshak (Niyojan Awam Seva Sarta) Niyamawali, 2006 and the Bihar Nagar Nikaya Madhyamik & Uchatar Madhyamik Shikshak (Niyojan Awan Seva Sarta) Niyamawali, 2006 (hereinafter referred to as ''the Rules'')?

It is not in doubt that the sole petitioner has assailed the aforementioned Government letter dated 1.3.2013 only because he finds himself to be disqualified for being considered for appointment on the post of teacher in a High School in terms of the Rules and therefore, it would be necessary to first take into account the requirement which was laid down in the Rules.

It would be thus significant for this Court to consider the impact and scope of Rule 4 of the 2006 Rules which is identical in the case of appointment of the teachers in the High/Higher Secondary Schools either in the rural area or in the urban area which, as noted above, are governed by the two different rules.

Rule 4 of the Bihar Zila Parishad Secondary/Higher Secondary Teachers (Employment & Service Conditions) Rules, 2006 reads as follows:

Rule 4 of the Bihar Nagar Nikai Secondary/Higher Secondary Teachers (Employment & Service Conditions) Rules, 2006 reads as under:

As would be apparent from Rule 4 (iii) in both the Rules, they specifically prescribe qualification of Bachelor in Education (B.Ed.) as a condition precedent for appointment on the post of teachers in High and Higher Secondary Schools. In fact Rule (iii) can be easily divided into two parts on the basis of date of acquiring of such qualification of B.Ed., namely, prior to coming into force of National Council for Teachers Education Act, 1993 (hereinafter referred to as ''the Act'') or after the aforesaid Act came into force. It is also not in dispute that the Act came into force with effect from 1.7.1995 in view of S.O. No. 620(E) dated 1.7.1995, whereby and where-under the Central Government had fixed the date of 1.7.1995 as a date on which the Act came into force. Thus, all that Rule 4(X) (iii) lays down is that such of the candidates who had acquired B.Ed., degree prior to 1.7.1995 must have acquired them from the recognized training institutions whereas those who have acquired B.Ed., degree after 1.7.1995 must have acquired their B.Ed., degree from the recognized training institutions by National Council for Teacher Education.

In the backdrop of the aforementioned provisions of the Act coming into force with effect from 1.7.1995 and the Act itself defining the expression ''Institution'' u/s 2(e) of the Act as also ''recognized Institution'' u/s 2(i) of the Act, there would be no difficulty in understanding that under the Rules of appointment for the post of teacher under Rule 4 (iii) the B.Ed. degree of a candidate after 1.7.1995 was to be acquired only from an Institution offering course or training in the teacher education which has been recognized by the National Council for Teacher Education u/s 14 of the Act.

Lest there be any confusion, the Act also defines the expression ''teacher education'' in section 2(1) and further the expression ''teacher education qualification'' u/s 2(m) of the Act. Thus, the course of B.Ed., which is a teacher education in terms of Section 2(1) of the Act, its degree becomes teacher education qualification in terms of Section 2(m) of the Act which has been defined to mean a degree, diploma or certificate in teacher education awarded by a University or examining body in accordance with the provision of the Act. In view of the aforesaid provisions of the Act there will be no difficulty for this Court in holding that the degree of B.Ed., acquired after 1.7.1995 which would qualify a candidate to be appointed as a teacher in High or Higher Secondary Schools of the State of Bihar in terms of Rule 4 (iii) will be only from such teachers training Institutions who have been recognized by the National Council for Teacher Education (NCTE).

The impugned order, therefore, which is only by way of clarification issued by the State Government to all the District Education Officers is a guideline as with regard to implementation of the provision of Rule 4 (iii) as would be evident from the text of the aforesaid impugned order quoted hereinbelow:

Learned counsel for the petitioner, however, has tried to find fault in the aforementioned order by taking a plea that the instruction issued by the State Government in the impugned order to its District Education Officers even by way of clarification that the degree of B.Ed. conferred by the Tribhuvan University must be held to be bad because in the Rules and especially its Rule 4(iii) there was no such prohibition as with regard to the degree of B.Ed. from Tribhuvan University. It is in this regard that he has also referred to the communications made either by Tribhuvan University or by the Association of Indian Universities to support himself that the degree of B.Ed. acquired by the petitioner from Tribhuvan University being equivalent to the degree of B.Ed. conferred by any of the teacher training Institution in India being the same the petitioner and other candidates having their degree of B.Ed. from Tribhuvan University cannot be held to be ineligible in terms of Rule 4 (iii) of the Rules.

This Court, however, finds it difficult to accept the submission of the learned counsel for the petitioner that either under the provisions of the Rules as a whole or even under Rule 4(iii) any candidate including the petitioner having acquired qualification of degree of B.Ed. from Tribhuvan University, which is admittedly a University in the country of Nepal and thus, a foreign University, will qualify for appointment on the post of teachers in High and Higher Secondary Schools of the State of Bihar for which there is statutory Rule laying down the qualification under Rule 4(iii).

As a matter of fact if the petitioner contends that the Tribhuvan University is a recognized University, Rule 3(xv) of the Rules would stare in his face, wherein recognized University has been defined to mean a University which has been recognized by either the State Government or by the University Grant Commission. The University Grants Commission Act, 1956 u/s 2(f) defines ''University'' to mean University established or incorporated by or under a Central Act, a provincial Act or a State Act and includes any such institution as may, in consultation with the University concerned, be recognized by the University Grant Commission in accordance with the Regulations made in this behalf under the UGC Act. Admittedly Tribhuvan University will not fall within the meaning of definition of Section 2(f) of UGC Act and therefore, when there is also no documentary evidence to show that the State of Bihar had ever recognized Tribhuvan University in any manner, the petitioner cannot be said to have a degree from a recognized University in terms of Rule 3(xv) of the Rules.

As noted above, the requirement of Rule 4(iii) as with regard to degree of B.Ed. acquired on or after 1.7.1995 is that such training institution must be recognized by the NCTE and admittedly there is nothing on record to show that NCTE had ever granted recognition to the course of B.Ed. being imparted by Tribhuvan University. As a matter of fact when NCTE Act is also not applicable to any Foreign University there would be hardly any occasion for recognition of NCTE to B.Ed. course of Tribhuvan University, which is situated in a foreign country, namely, the country of Nepal.

This Court, however, immediately must refer to the communication of Tribhuvan University dated 10.4.2009, as contained in Annexure 6, which has been written by the Assistant Dean posted in Dean''s office of the faculty of Education in Tribhuvan University, Kirtipur, Kathmandu, Nepal addressed to the Section Officer (Evaluation) of Association of Indian Universities, New Delhi. For sake of clarity and convenience the aforesaid letter is also quoted in extenso:

TRIBHUVAN UNIVERSITY FACULTY OF EDUCATION

Dean Office Kirtipur, Kathmandu,

Nepal No. 359/065-066 Date April 10, 2009

Subject: Forwarding Information about One Year B.Ed. degree of Tribhuvan University.

To,

Section Officer (Evaluation) Association of Indian Universities (AIU) AIU House, New Delhi, India

Dear Sir,

With reference to the letter of Curriculum Development Center of Tribhuvan University dated 2065/12/25 (sic), registered No. 881 in relation to the application of a group of Indian candidates who did their B.Ed. from Tribhuvan University of Nepal, we are writing you to clarify and establish the fact about one Year Bachelor of Education (B.Ed.) degree which is in operation for the past 40 years under this university. We would therefore like to furnish you the following details regarding the One Year B.Ed. degree of Tribhuvan University:

a. In order to be eligible for joining the One year B.Ed. degree one has to qualify from the entrance test with Bachelor degree in any discipline.

b. The duration of B.Ed. programme is of two types:

- Three year B.Ed. programme requiring the candidate to pass 10+2 system of 12 years schooling.

- One year B.Ed. programme requiring the candidate to pass Bachelor''s degree in any discipline.

c. the minimum pass percentage for theoretical and practical subjects is not the same, the attached academic transcript clarifies this.

d. The curriculum along with evaluation methodology is attached for your kind reference.

e. We would like to remind you of a letter written by AIU (March 12, 2007) to one of our One year B.Ed. degree holders, Shri Yogendra Kumar, that clearly mentions "B.Ed." degree obtained by you from Tribhuvan University is worthy of acceptance as equivalent to the corresponding degree of an Indian University" which clearly establishes the fact that the One year B.Ed. degree of Tribhuvan university is well recognized by the AIU as an equivalent Indian University degree of the same level.

Thanking you for your kind support.

Sd/- Dr. Hari Maharjan Assistant Dean

A bare reading of the aforementioned letter would go to show that when some of the Indian candidates who had completed their course of B.Ed. from Tribhuvan University of Nepal had filed their application in Tribhuvan University as with regard to value of such B.Ed. course, it was sought to be clarified on behalf of Tribhuvan University that its one year Bachelor Course of Education (B.Ed.) was being granted after imparting the education in a systematic manner. As a matter of fact this letter of Tribhuvan University dated 10.4.2009 also seeks support of some of the communication earlier made by the Association of Indian University recommending the degree of B.Ed. from Tribhuvan University as worthy of its acceptance equivalent to the corresponding degree of an Indian University.

The question, therefore, would be can this communication of Tribhuvan University by itself be of any evidentiary value to hold that the same meets the requirement of Rule 4(iii) of the Rules under which the petitioner must qualify with a requisite B.Ed. degree? The answer will be of course in negative because all that this letter seeks to convey is some sort of equivalence of B.Ed. degree being conferred in India to that one which is being conferred in Tribhuvan University. As a matter of fact Tribhuvan University itself seeks support of some communication of Association of Indian Universities in its letter dated 12.3.2007 in relation to one of such candidate, namely, Sri. Yogendra Kumar, who had passed his B.Ed. examination from Tribhuvan University. Thus, there will be no difficulty for this Court in holding that the letter of Tribhuvan University dated 10.4.2009 in no view of the matter can be treated to be sufficient to make the petitioner eligible for appointment on the post of teachers by virtue of his holding B.Ed. degree from Tribhuvan University.

Learned counsel for the petitioner thereafter had also relied to a communication made to the petitioner by NCTE vide its letter No. 17007 dated 13.3.2013 to contend that when he had sought information under the RTI Act about B.Ed. degree of Tribhuvan University the NCTE had chosen to refer the matter to the Association of Indian Universities and therefore, whatever was communicated by the Association of Indian Universities to the petitioner in its letter dated 17/18.4.2013, as contained in Annexure 5/1, should be treated to be the last word as with regard to equivalence of a B.Ed. degree of Tribhuvan University.

In view of the fact that the learned counsel for the petitioner relies on the aforementioned communication of Association of Indian Universities dated 17/18.4.2013 it would be useful to quote the aforementioned entire letter written by the Association of Indian Universities, New Delhi addressed to the petitioner which reads as follows:

Association of Indian Universities

AIU House, 16, Comrade Indrajit Gupta Marg

New Delhi 110002

Ref. No. SGO/RTI/2013/305

April 17/18, 2013

Shri Rabindra Kumar Sinha

S/o Shri Sheojatan Singh,

Patna Public School

South T N Path, Chirayan land

Patna-800 001 (Bihar)

Dear sir,

This has reference to the letter dated 02-03-2013 under RTI Act, 2005. The reply is given as under:

Thanking you,

Yours faithfully.

Sd/-

Information Officer

As would be evident the petitioner after issuance of impugned order dated 01.03.2013 wanted to know from the Association of Indian Universities by seeking an information as to whether the B.Ed. degree of Tribhuvan University was valid or not in India and whether it was equivalent to B.Ed. degree of Indian Universities, recognized by NCTE and also acceptable or not in India? In answer to the aforementioned information sought by the petitioner on 02.03.2013, the Information Officer in his reply dated 17/18.04.2013 had informed that the Association of Indian Universities had accorded equivalence of one year B.Ed. degree programme of Tribhuvan University with the corresponding B.Ed. degree of Indian University on a condition that Tribhuvan University''s admission criteria be at par with the admission criteria of Indian University prescribed by the NCTE/concerned University.

The question however would be what is the status of Association of Indian University? The Rules do not recognize Association of Indian Universities and in fact a bit of probe about the status of Association of Indian Universities will lead to discovery that the Association of Indian Universities is in fact an organization registered under the Society Registration Act and is neither a statutory body nor is part of the Government of India. Thus, its opinion as to legitimacy or recognition of any foreign qualification is not binding on the State of Bihar. In view of above, any recommendation or any resolution of Association of Indian Universities in absence of its having statutory force cannot be accepted as binding for its being held that the B.Ed, degree of Tribhuvan University is one and the same as by any teacher training institution recognized by NCTE.

The issue of equivalence of a qualification or degree being a jinxed question of fact can never be safely decided within the limited parameters of Writ Jurisdiction as was held by a Division Bench of this Court in the case of Satyendra Singh and Others Vs. Sanjay Kumar and Others, , relevant portion whereof reads as follows:

Prescribing qualification for a particular post by the competent authority is a policy decision. The Government frames a policy after taking into consideration the number of facts and circumstances, expert opinion and other relevant considerations. The power of judicial review in such matters is limited. The Court can interfere only when the authorities have acted arbitrarily or in violation of the statutory or constitutional provisions. The Court does not sit as an appellate forum in disguise over the policy matter. It has no power to re-frame the policy matter and in case the policy matter is found suffering from any legal infirmities as indicated above, then the same is to be struck down and the matter is sent to the authority to consider the policy matter in accordance with law laid down. If the rules have been framed prescribing the qualification for a particular post, the Court has no power to re-frame the rules or supplement the rule by adding additional qualification for the simple reason that this is a function of the appointing and in the case of any legal lacuna the Court can only direct the appointing authority to consider the matter on the basis of the expert opinion and other relevant consideration. The Court cannot on the basis of the documents appended with the affidavit determine the equivalence or addition of qualification in the recruitment rules.

Thus, the law is settled that when the recruitment rules provide for a requisite qualification and the question arises as to whether any other qualification is equivalent to the qualification prescribed in the recruitment rules or not, then that question has to be decided by the competent authority and the Court cannot amend the rule or reframe it and the Court can only direct the concerned authority to reexamine the matter specially in a technical matter, like this, after obtaining the expert''s opinion. The Court cannot take a final decision on the basis of affidavit and the opinion of the expert and decide such matter. The power of judicial review in such a matter is very limited and in case if the State Government decides the matter and the same is found to be arbitrary, mala fide then the Court will consider the same keeping in view the scope of judicial review in such matter.

The question involved in the case relates to filling up technical posts and as such it cannot be decided on the basis of certain documents appended with the affidavit by the Court in view of the settled law regarding the power of judicial review by the Apex Court in such matter. In that view of the matter, the learned single Judge was not justified in deciding the question that qualification possessed by respondent No. 1 was equivalent to the qualification prescribed in the Recruitment Rules inasmuch as that amounts to amending the rules and re-framing the rules which is not permissible in law...

In view of the aforementioned authoritative pronouncement of the Division Bench, this Court would find difficult to follow certain observations which were made in the order dated 6.8.2010 in C.W.J.C. No. 6936/2009 (Purushottam Pandey v. the State of Bihar & Ors.). Firstly, it would be found that whatever observations were made in the aforementioned order by this Court in the case of Purushottam Pandey (supra) was de hors the statutory Rules as has been noticed in the present case in form of Rule 4(iii) of the Rules. Secondly whatever was observed by this Court in the case of Purushottam Pandey (supra) was in relation to some circular of the State Govt. of Bihar and the issue was, therefore, also not decided conclusively.

In any event when the statutory Rules alike in the present case in form of Rule 4 (iii) was not even noticed, the view taken in the case of Purushottam Pandey (supra) cannot be made applicable to the facts of the present case, especially when the impugned order dated 1.3.2013 was also not in existence when the order was passed in the case of Purushottam Pandey (supra) on 6.8.2010. This Court would, accordingly, hold that whatever has been observed in the case of Purushottam Pandey (supra) even in respect of qualification of B.Ed. of Tribhuvan University will not make the petitioner eligible for the post of teacher both in terms of Rule 4(iii) and the impugned order dated 1.3.2013 both of whom in fact were not even taken note of in the order passed in the case of Purushottam Pandey (supra).

Thus, for the reasons indicated above, this Court is of the considered view that there is no error in the impugned order passed by the Joint Secretary in his letter dated 1.3.2013 clarifying that in terms of Rule 4(iii) of the Rules the candidates possessing qualification of B.Ed. from Tribhuvan University will not be eligible for appointment on the post of teachers in High and Higher Secondary Schools of the State of Bihar. That being so, this application must fail and is accordingly dismissed.