Manju Devi vs State of Uttar Pradesh and Others

Sunita Agarwal, J—Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Puneet Bhadauria, learned counsel for the petitioner and Sri Vikram Bahadur Singh, learned counsel for respondent No. 4.

By means of the present writ petition, the petitioner is challenging the order dated 6.6.2015 passed by respondent No. 3 and the consequential order dated 9.6.2015 passed by respondent No. 4 in terminating her services as Head Mistress from the institution. The grounds for termination of services of the petitioner as indicated in the order impugned are that upon verification of the mark-sheet and documents in the service record of the petitioner, it was found that the teaching experience certificate of Sri Sant Vinova Inter College, Jhindua (Sirsa) Etawah submitted by the petitioner is a forged document. The Principal of the said institution, by letter dated 29.5.2015, had informed that the petitioner did not work on the post of Assistant Teacher from 18.7.1997 to 30.6.2003 as per the college record.

With regard to the verification of B.Ed. mark-sheet, the ground is that the petitioner did B.Ed. in the year 1995-96 through distance education mode which was not an approved course by NCTE as per the letter dated 7.12.2007. The allegations of fraud in submitting a forged experience certificate for obtaining appointment on the post of Head Mistress were found proved. The approval order dated 25.9.2006 of the selection of the petitioner on the post of Head Mistress was cancelled. Further a recovery has been directed against the petitioner for recovery of the monetary benefits attached to the post received by her.

The main ground of challenge to the order of termination of services of the petitioner urged by the learned counsel for the petitioner is that no opportunity whatsoever has been provided to the petitioner. The allegations of fraud are based upon a verification report which has not been given to the petitioner at any point of time. No explanation of the petitioner was called and the verification report was accepted behind his back. The order is in gross violation of the principles of natural justice and cannot be sustained.

Reliance has been placed upon an experience certificate alleged to have been issued on 14.7.2015 by the Manager and Principal of Sri Sant Vinova Inter College, Jhindua (Sirsa), Etawah wherein it is certified that the petitioner had worked in the said institution from 18.7.1997 to 30.6.2003 under Self-finance scheme on purely temporary basis. She was given remuneration of Rs. 1500/- per month by the Managing Committee from its own resources. The petitioner had discharged the duties of Assistant Teacher and was imparting teaching to Class 9th and 10th in the said institution. This certificate has been placed for the first time with the present writ petition. Therefore, it is not possible for the Court to examine the genuineness of this document.

Further the experience certificate submitted by the petitioner at the time of seeking appointment alongwith her application form is relevant. The genuineness of the said document has been verified by respondent authority from the institution concerned. The report dated 29.5.2015 of the Principal of Sri Sant Vinova institution states that the certificate was never issued by the institution as per the record therein.

In view thereof, it is not open for the petitioner to place reliance upon any other document in this writ petition.

This Court finds that before terminating the services of the petitioner on the allegations of fraud, an opportunity was required to be given by the District Basic Education Officer which has not been done in the instant case. Moreover, the order of recovery of monetary benefits received by the petitioner also is not preceded by any adjudication on the point that whether the petitioner can be held liable for committing fraud in obtaining the appointment. No such exercise has been done. However, the termination order is based on an other ground regarding eligibility of the petitioner for appointment apart from teaching experience.

Submission of learned counsel for the respondent is that the petitioner did not possess the minimum qualification for the post of Head Mistress in Junior High School as per Rule 4(1) of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978. Unamended Rule 4(1) provides the minimum qualification which did not include B.Ed qualification as contained in 1978 Rules. It has been substituted and amended with effect from 12th June, 2008 and the substituted sub-rule (1) of Rule 4 as it now stands includes a regular B.Ed. Degree from a duly recognised institution as the minimum qualification for the post of Assistant Teacher in Junior High School. At the time of appointment of the petitioner on the post of Head Mistress, B.Ed was not the qualification and hence the appointment is void-ab-initio.

No relief can be granted to the petitioner in the instant writ petition on the ground that the B.Ed Degree has subsequently been added in the minimum eligibility qualification for the post of Assistant Teacher/Head Master of Junior High School.

Submission is that the controversy as to whether B.Ed. could be requisite qualification for the purpose of appointment to the post of Assistant Teacher/Head Master of primary school had engaged attention of this Court in a number of writ petitions.

This issue travelled upto the Apex Court in Dilip Kumar Ghosh and Others Vs. Chairman and Others, AIR 2005 SC 3485 : (2005) 107 FLR 634 : (2005) 8 JT 271 : (2005) 7 SCC 567 : (2005) SCC(L&S) 986 : (2005) 3 SCR 158 Supp : (2006) 1 SLJ 39 , Yogesh Kumar and Others Vs. Government of NTC, Delhi and Others, AIR 2003 SC 1241 : (2003) 97 FLR 146 : (2003) 2 JT 453 : (2003) 2 SCALE 693 : (2003) 3 SCC 548 : (2003) SCC(L&S) 346 : (2003) 2 SCR 662 : (2003) 3 SLJ 210 : (2003) AIRSCW 1630 : (2003) 2 Supreme 510 wherein the Apex Court has held that the candidates who had B.A./B.Ed./Ph.Ed. qualifications could not be equated with candidates who were holders of Junior Basic Training or Primary Teachers'' Training Certificates for the purpose of appointment to the post of primary teachers. It was held that the B.Ed. Degree qualification cannot be treated as comparable to the qualification prescribed for primary school teachers and further it cannot be treated as higher qualification. The specialised training given to teachers for teaching small children at primary level cannot be compared with training given for awarding B.Ed. Degree.

Several Division Benches of this Court have also considered the same issue particularly in the context of the applicable Statutory Rules. In Sanjay Kumar Tyagi Vs. State of U.P. and Others, (2005) 1 AWC 824 : (2005) 1 ESC 713 , the question that arose for consideration was whether a candidate possessing a B.Ed. certificate could be considered to be eligible for appointment to the post of Head Master of a recognised Junior High School under Rule 4(2)(d) of the Rules of 1978. The Division Bench also noted that specialised training courses which are specifically confined to specialised training for imparting education to small children were only be taken into consideration. B.Ed/L.T./B.P. Ed./CP.Ed or DP.Ed certificates could not be taken into consideration.

The effect of subsequent amendment of the Rules in 2008 had been considered in a judgment of Division Bench of this Court in Special Appeal No. 395 of 2007 (Smt. Madhubala Upadhyay v. State of U.P. and others), it was held that the amending Rules of 2008 would not apply to a situation wherein an appointment was made when the unamended rule was in existence. It was held that in pursuant to an advertisement which was issued in August, 1998, the appellant had applied for appointment to the post of Assistant Teacher. At the relevant point of the time, the appellant did not possess the necessary qualification and that the B.Ed. Degree was not a prescribed qualification under Rule 4(1) of the Rules of 1978.

This view was affirmed by another Division Bench in Sanjay Kumar Tyagi''s case (supra) wherein it was held that amendment of 2008 was not clarificatory.

In another judgment of this Court in Rishi Kant Sharma Vs. State of U.P. and Others, (2011) 6 ADJ 1 : (2011) 3 UPLBEC 1957 , a Division Bench of this Court has held that pursuant to an advertisement issued in June, 2002 for the post of Head Master, the appellant was selected in September, 2002. The appointment was approved, however, it was challenged in a writ petition filed in the year 2003. The approval of the appointment of the appellant was cancelled after 7 years of the filing of the writ petition. Resultantly, the appellants had continued to work on the post of Head Master. The Division Bench noted that the appointment of the appellant was made following due process of law after an advertisement was issued and selection was processed. There was a long standing dispute as to whether the B.Ed. course could be taken as a superior course to B.T.C. and further the State Government had issued a Government Order incorporating the B.Ed. Degree to satisfy the requirement. In this background, the Division Bench held that the Basic Shiksha Adhikari could not have ignored the qualifications of the appellant. The appellants had continued in service for eight years during the pendency of the writ proceedings and therefore, their case is distinguishable.

The judgment of the learned Single Judge in cancelling the appointment of the appellants on the ground of not possessing the requisite qualification under Rule 4(2) of the Rules, 1978 was set aside. The correctness of Division Bench judgement in Rishi Kant Sharma (supra) was doubted by another Division Bench of this Court and a reference was made on 4th September, 2013 to the Full Bench.

The Full Bench of this Court in Ram Surat Yadav and Others Vs. State of U.P. and Others, (2014) 1 ADJ 1 : (2014) 1 ALJ 637 : (2014) 1 ESC 1 : (2014) LabIC 1212 : (2014) 1 UPLBEC 1 has clarified that the judgment of the Division Bench in Rishi Kant Sharma''s case was not correct in distinguishing the decision of the Supreme Court in Mohd. Sartaj''s case. The view taken by the Division Bench in Rishi Kant Sharma (supra) is also contrary to the judgments of the Supreme Court in P.M. Latha and Another Vs. State of Kerala and Others, (2003) 97 FLR 390 : (2003) 2 JT 423 : (2003) 2 SCALE 706 : (2003) 3 SCC 541 : (2003) SCC(L&S) 339 : (2003) 2 SCR 653 : (2003) 2 SLJ 375 , Yogesh Kumar (supra), Dilip Kumar Ghosh (supra) and Pramod Kumar Vs. U.P. Secondary Education Services Commission and Others, AIR 2008 SC 1817 : (2008) 3 CLT 233 : (2008) 13 JT 635 : (2008) 4 SCALE 580 : (2008) 7 SCC 153 : (2008) 2 SCC(L&S) 244 : (2009) 1 SLJ 207 : (2008) AIRSCW 2507 and the consistent stand of this Court in the judgments of Division Benches in Sanjay Kumar Tyagi (supra), Smt. Madhubala Upadhyay (supra) and Akhilesh Kumar Pandey reported in 2009 (9) ADJ 9. The decision in Rishi Kant Sharma''s case has been held as laying down incorrect principles of the law. The reference was answered accordingly.

Submission is that in view of the law laid down by the Full Bench of this Court in approving the judgments of various Division Benches that all candidates who possessed B.Ed. qualification at the time of appointment could not be considered for appointment to the post of Assistant Teacher or the Head Master of a Junior High School recognised under the Basic Education Act against the qualification prescribed in unamended Rule 4(1) and (2) of 1978 Rules, the petitioner''s appointment on the post of Head Master approved on 25.9.2006 cannot be sustained.

In rejoinder, learned counsel for the petitioner submits that a Division Bench of this Court in Special Appeal No. 630 of 2005 (Ekta Shukla & Others v. State of U.P. & Other, Allahabad High Court) has held that B.Ed. Degree through Distance Mode of the Academic years 1996-97, 1997-98 and 1998-99 are valid.

Placing reliance upon the judgment of this Court in Misc. Single No. 7730 of 2011 (Satya Prakash Yadav v. State of U.P.), it is stated that there is no difference in regular course and the course done through the Distance Mode.

Further in State of U.P. and Others Vs. Bhupendra Nath Tripathi and Others, AIR 2011 SC 63 : (2011) 128 FLR 10 : (2010) 12 JT 14 : (2010) 11 SCALE 521 : (2010) 13 SCC 203 : (2010) 6 SLR 298 : (2010) AIRSCW 6784 , it is held that the institutions which were already in existence prior to the enforcement of NCTE Act offering a course for training in teacher education, the degrees or certificates granted by them deemed to be of the recognised institutions after the commencement of the Act, provided those institutions also received recognition under the Act. No differential treatment can be given to these two categories of institutions.

Placing reliance on the judgment of this Court in Kalu Ram Vs. State of U.P. and another, (2000) 1 AWC 509 : (2000) 1 UPLBEC 85 , it is submitted that the validity of the appointment cannot be seen after a reasonable period has gone by.

Further on the same issue, reliance has been placed upon the judgment of the Apex Court in Special Leave Petition (Civil) Appeal No. 16256 of 1992 (M.S. Mudhol v. S.D. Halegkar) to submit that the person who is working for a long time, his appointment cannot be disturbed after a long period of nine years for want of qualification. The writ of quo-warranto was refused.

Further submission of learned counsel for the petitioner is that the enquiry itself is without jurisdiction which could not have been conducted by the District Basic Education Officer as it was prerogative of the Committee of Management only and the matter had to be referred to the Committee of Management. Earlier appointment was approved by the District Basic Education Officer and he had no power to review the approval order. No opportunity has been granted and the entire enquiry has been concluded within 21 days. The termination order cannot be passed after nine years of service more so in view of the fact that the petitioner is having unblemished career. This apart under the amendment rules, B.Ed. Degree is now one of the essential qualification to the post of Assistant Teacher and Head Master in Junior High School run by Basic Shiksha Parishad, looking to the qualification of the petitioner, she is entitled to continue as she possess the existing qualification prescribed under the rules.

Having heard learned counsel for the parties and perused the record.

Two grounds on which the approval order has been revoked by the District Basic Education Officer are:-

(1) The petitioner does not possess the requisite qualification, as she had completed B.Ed. Course through distance mode.

(2) A forged experience certificate was submitted by her at the time of seeking appointment.

It is admitted fact that the petitioner was appointed pursuant to a advertisement issued in the year 2006. Appointment letter was issued on 26.9.2006.

Admittedly at the time of advertisement and appointment of the petitioner to the post of Head Master, B.Ed. was not the requisite qualification and the minimum qualification was different as per unamended Rule 4(1) of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978.

The question as to whether the B.Ed. could be treated as equivalent or better qualification and candidates having B.Ed. degree could be appointed to the post of Assistant Teacher/Head Master in Junior School had engaged attention of this Court and it was reiterated again the again that the qualification as prescribed in Rule 4 of 1978 Rules would prevail. The B.Ed. Could not be treated as higher or better qualification for consideration for appointment. However, with the amendment in the Rules of 1978 incorporated on 12th June, 2008, B.Ed. Degree has been included as one of the training qualification.

It was argued before the Full Bench that the amendments to the Rules which was brought about in 2008 must be regarded as being retrospective and clarificatory. It was considered that a substantial change has been made in the provisions of Rule 4(1) after the amendment. The amendments have also been made in Rule 4(2) relating to the qualifications for appointment to the post of Head Master and in Rule 8 relating to minimum age of appointment of Assistant Teachers and of Head Masters. The Full Bench has expressed agreement to the view taken by the Division Bench in Smt. Madhubala Upadhyay (supra) and it was observed that the amendments which were made to the Rules 1978 on 12th June, 2008 cannot be regarded as clarificatory or retrospective in nature.

The same view has been taken by the Apex court in Yogesh Kumar''s case (supra). Thus for the vacancies which were advertised prior to the 12th June, 2008, B.Ed. candidates could not be regarded as eligible candidates as B.Ed. qualification could not be treated as prescribed qualification for primary teachers/Head Masters as per unamended Rule 4(1) and (2) of 1978 Rules.

In this view of the matter, the petitioner was having not holding the requisite qualification for appointment on the date of submission of application form and has not been validly appointed. The appointment is void-ab-initio. His appointment cannot be saved on the ground of delay or continuation for a long time.

However, in making appointment of the petitioner in absence of the qualification the wrong act has been done by the authority and it cannot be attributed to the petitioner and therefore for the reason of appointment on the basis of B.Ed. qualification, she cannot be faulted. The monetary benefits etc. received by her for the period of appointment cannot be recovered on this ground.

So far as the other ground for recovery initiated against the petitioner in the order is that she had submitted forged experience certificate. This order has been passed on an enquiry initiated by the Basic Shiksha Adhikari and after obtaining a verification report but no notice or opportunity has been given to the petitioner at any point of time nor her explanation was sought after receipt of the verification report. On the allegation of forged document, the petitioner was required to be given opportunity to explain her conduct and defend herself.

As this has not been done, the order of the District Basic Education Officer to the extent of initiation of recovery against the petitioner and for lodging of First Information Report for forgery cannot be sustained.

The order dated 6.6.2015 passed by the District Basic Education Officer, Etawah is partly set aside to the extent of observations made above.

The appointment of the petitioner on the post of Head Master is held void-ab-initio.

However, on the issue of submission of forged teaching certificate by her at the time of appointment, it would be open for the management to initiate an enquiry and pass appropriate order after providing due opportunity to the petitioner.

The writ petition is allowed in part.