Pankaj Kumari vs State of Raj. and Others

Veerender Singh Siradhana, J.—The matter comes up on an interim application preferred on behalf of the State-respondents under Article 226(3) of the Constitution of India for vacation of the ex-parte interim order dated 9th April, 2010, staying the operation and effect of the impugned order dated 11th March, 2010, by which the services of the petitioner were terminated for the educational qualifications of Diploma (Craft), was not treated to be equivalent to Diploma of STC.

A copy of the application, seeking vacation of the ex-parte interim order, was also furnished on 4th April, 2014, to the counsel for the petitioner, which has not been responded till date in spite of several opportunities allowed by the Court on 26th May, 2014, 28th July, 2014 and 22nd September, 2014. When the matter came up on 12th January, 2015, learned counsel appearing on behalf of the petitioner sought a little accommodation to argue the matter after having considered the verdict of the Hon''ble Supreme Court in the case of State of Rajasthan and Another Vs. Kulwant Kaur, , as referred to and relied upon by the learned counsel for the State-respondents.

Reply to the writ application was filed by the respondents with a copy in advance to the counsel for the petitioner on 12th April, 2014.

Time was again prayed for and was allowed on 28th January, 2015 and 2nd March, 2015. On 18th March, 2015, again the matter was adjourned at the request of the counsel for the petitioner with the understanding that the matter would be heard and finally disposed off on the next date since the controversy stands resolved by the opinion of the Hon''ble Supreme Court in the case of Kulwant Kaur (supra). The petitioner, aggrieved of the action of the State-respondents in terminating her services, has approached this Court praying for the following relief(s):

"i) issue an appropriate writ, order or direction in the nature thereof and thereby quash and set aside the impugned order dated 11/03/2010 (Annexure-11) passed by the Respondent No. 2 District Education Officer (Elementary Education) Jhunjhunu;

ii) Any other appropriate order or direction which the Hon''ble Court deems just and proper may also be passed in favour of the petitioner and the cost of the writ petition be also awarded in favour of the petitioner."

Briefly, the skeletal material facts, which are required to be noticed for proper appreciation of the controversy raised herein are that the petitioner being a candidate of Other Backward Class (OBC) applied for consideration of her candidature in response to an advertisement published by the Rajasthan Public Service Commission (hereinafter referred to as the ''RPSC'', for short), Ajmer on 2nd June, 2014, inviting applications from eligible candidates for appointment to the post of Teacher Grade-III. The petitioner being successful in the recruitment process was accorded appointment, in consequence thereof vide order dated 11th March, 2005. However, her services were terminated vide order dated 11th March, 2010, for she did not possess the required educational qualifications.

It is pleaded case of the petitioner that she acquired the qualification of Secondary School Examination in the year 1987, from the Board of Secondary Education, Rajasthan and Senior Secondary (Academic) Examination in the year 1992. Further, she is also in possession of Two Years Teachers Training Course (Craft Teacher), as would be evident from the Certificate dated 7th August, 1990 (Annexure-5). It is also pleaded that since the Two Years of Diploma of Craft Teacher was not considered as equivalent to STC Course and such candidates were not considered eligible for appointment to the post of Teacher Grade-III. The Government of Rajasthan, therefore, conducted a Bridge Course to make the course equivalent to STC Course. The petitioner claims to have successfully completed the Bridge Course of five months from District Education Training Institute, Goner, in the year 1995. The petitioner was declared successful in the recruitment process conducted by the RPSC in the year 2004, consequently, she was accorded appointment vide order dated 11th March, 2005, on the post of Teacher Grade-III and was posted at Govt. Primary School, Harijan Basti, Gujarwas, Panchayat Samiti Buhana, Tehsil Buhana, District Jhunjhunu, where she joined on 18th March, 2005. However, vide impugned order dated 11th March, 2010, her services have been terminated without affording any opportunity of hearing to the petitioner on the pretext that the Diploma in Craft Course Education, has not been treated as equivalent to STC Course. At the motion stage, an interim order dated 29th April, 2010, was passed by the Court staying the effect and operation of the impugned order dated 11th March, 2010.

In response to the notice of the writ application, the State-respondents have filed their counter affidavit stating that in the case of Kesarlal Kumawat Vs. State and Others; 1999 (2) WLC 650 wherein the equivalence of NTT Diploma with BSTC was the issue and a special course of six months was conducted by the State-respondents to ensure equivalence of the two course. But no such exercise has been undertaken with respect to Industrial Training Institute, Parashrampura, Jaipur. It is further specifically pleaded in the counter affidavit that the educational qualifications acquired by the petitioner of NTC Diploma from Industrial Training Institute, Parashrampura, Jaipur, is not an equivalent qualification to BSTC. Photo-copies of the Circular dated 12th February, 2008 and 10th December, 2009 have been placed on record in support of the statement. The appointments to the post of Teacher Grade-III under the Rajasthan Panchayati Raj Act, are made by the RPSC in accordance with the qualifications and eligibility prescribed for the post of Teacher by National Council for Teacher Education. The State-respondents, in the counter affidavit, have also detailed out the fact that the candidates, who acquired NTT Training and Drawing with Bridge Course were not treated as eligible for appointment to the post of Teacher Grade-III. An appointment of 13 such candidates has been cancelled, as would be reflected from the order dated 10th December, 2009 and 26th February, 2010 (Annexure-R-3 and R-4, respectively).

The statements made in the counter affidavit/reply to the writ application, with the documentary evidence in support thereof, have not been disputed by subsequent pleading be it a rejoinder or an additional affidavit, by the petitioner.

Mr. R.L. Chaura, appeared on behalf of the petitioner but by that time the matter was almost concluded having heard the learned counsel for the State-respondents. Be that as it may, Mr. Chaura prayed for an adjournment of the matter, the prayer has been declined. In view of the fact that the matter was posted for final hearing since the controversy is no more res-integra in view of the decision of the Hon''ble Apex Court in the case of Kulwant Kaur (supra).

Mr. Parikshit Singh, appearing on behalf of the State-respondents, reiterating the pleaded facts and supporting the action of the State-respondents, in terminating the services of the petitioner emphasized that Rule 266 of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as the ''Rule of 1996'', for short), contemplates academic qualifications, which provides for Diploma or Certificate in basic teachers training, of a duration of not less than two years, or Bachelor of Elementary Education (B.El.Ed.). The petitioner admittedly is not in possession of the required educational qualifications which is a condition of service. Referring to circular dated 12th February, 2008 and 10th December, 2009, learned counsel reiterated the fact that Diploma acquired by the petitioner, in a particular Craft cannot be treated as an equivalent qualification, as contemplated under the Rule 266 of the Rules of 1996.

I have heard the learned counsel for the parties and with their assistance perused the materials available on record.

The short question which needs for consideration in the instant case at hand is: Whether the qualification of Two Years of Diploma of Craft Teacher could be treated as equivalent to Diploma or Certificate in Basic Teachers Training? Under Rule 266 of the Rules of 1996, Diploma or certificate in basic teachers training of a duration of not less than two years or Bachelor of Elementary Education is contemplated. The controversy is no more res-integra for what has been held by the Hon''ble Supreme Court in the case of Kulwant Kaur (supra) wherein the Hon''ble Supreme Court relying upon the earlier opinion in the case of State of Rajasthan Vs. Shri Shyam Lal Joshi and others, , and Andhra Kesari Educational Society Vs. Director of School Education and Others, ; held that limited recognition in the fields of Craft cannot be treated as equivalent qualification for general Teachers. At this juncture, it will be relevant to consider the text of paragraph of 11 and 12 in the case of State of Rajasthan V. Shyam Lal Joshi, which reads thus:

"Secondary with Basic School Training Certificate (BSTC) or a training qualification recognized as equivalent to BSTC by State Government."

This Court held:

...A distinction has to be drawn between a general teacher who has received complete training and is in a position to teach all the subjects and a teacher who has received training in a particular craft and can, therefore, properly teach that particular craft only. Under the relevant rules for appointment to the post of Primary School Teacher it is necessary to have BSTC or a training qualification recognised as equivalent to BSTC by the State Government. The BSTC course is a two years'' training course wherein the training is given in various subjects. The NTC is granted by the ITI after a course of training in a particular craft. By order dated November 8, 1979, the State Government recognised the NTC given by ITI for teaching vocational subjects in Secondary Schools in certain specified crafts, namely, wood work, tailoring, leather work and spinning and weaving. This recognition is limited to teaching the aforesaid vocational subjects only. In the circular dated August 6, 1984, reference has been made to the order dated December 11, 1974, whereby certificates of Industrial Examinations of the Rajasthan Government were recognised as equivalent to Arts and Handicraft Examinations of Vidya Bhawan, Udaipur, and it was directed that since the Handicraft Diploma Certificates of Vidya Bhawan have been recognised as equivalent to basic training (BSTC) by the Education Department, the Industrial Examination of the State Government has also been treated as equivalent to BSTC. The said circular does not run counter to the limited nature of recognition granted to NTC by order dated November 8, 1979. This was clarified by circular dated January 7, 1985 wherein it has been stated that the NTC holders have been given recognition to teach industrial subjects in the secondary schools for conferring NTC and that candidates holding NTC are not eligible for the post of teachers in the Panchayat Samities. The last circular dated November 6, 1985 only gives effect to the directions contained in the earlier circular dated January 7, 1985. It would thus appear that limited recognition was given to NTC by order dated November 8, 1979 in the matter of teaching vocational subjects of the certificate and the subsequent circulars dated August 6, 1984, January 7, 1985 and November 6, 1985 do not detract from that position. The circular dated August 6, 1984 cannot be construed as giving a fresh recognition to NTC and, therefore, the question of withdrawal of recognition granted earlier by the subsequent circulars dated January 7, 1985 and November 6, 1985 does not arise. The principle of promissory estoppel is not attracted and the decision of this Court in Suresh Pal and Others Vs. State of Haryana and Others, on which reliance has been placed by the High Court, also has no application.

In view of the limited recognition that has been granted to NTCS the holders of NTCS cannot claim appointment as general teachers and can only be appointed to the post of craft teachers in the craft for which they hold the NTC. For teaching subjects other than the craft for which they hold the NTC the position of the holder of NTC is no different from that of an untrained teacher. The need for appointment of properly trained teachers has been emphasised by this Court in Andhra Kesari Educational Society v. Director of School Education: AIR 1987 SC 2027 wherein it has been observed: (SCC p. 399, para 20)

It is, therefore, needless to state that teachers should be subjected to rigorous training with rigid scrutiny of efficiency. It has greater relevance to the needs of the day. The ill-trained or sub-standard teachers would be detrimental to our educational system; if not a punishment on our children." 13. Rule 266 of the Rules of 1996 wherein the educational qualifications for appointment to the post of Teacher Grade III, which are essentially required, specifically contemplates Diploma or certificate in basic teacher training of a duration of not less than two years or Bachelor of Elementary Education (B.El.Ed.). Rule 266 of the Rules of 1996 reads thus:-

The assertion made on behalf of the petitioner that since the petitioner has been successful in the recruitment process and was accorded appointment as she was found eligible in accordance with the Rules in the recruitment process conducted in the year 2004, and she has been continuing on the post since her initial appointment made on 18th March, 2005, till date, in view of the interim order passed by the Court at the motion stage. Further the petitioner was holding the post legally, as a consequence of her appointment made according to law vide order dated 11th March, 2005 and continued in the same capacity till date, therefore she is entitled to hold the post. The statement advanced is absolutely misconceived for what has been observed by the Hon''ble Supreme Court in the case of Kulwant Kaur (supra), which reads thus:

"The Respondent herein did not possess the requisite qualification. Only because the order of termination of service of Respondent was directed to be stayed and in obedience of the interim orders passed by the High Court, she was allowed to continue in services, the same, in our opinion, can not lead to the conclusion that she had been validly holding the post or the order of termination was bad in law. After Shyam Lal Joshi (supra), it is not disputed that the teachers were required to possess a Short Training Certificate. As the respondent did not possess such essential qualification, she has no legal right to continue in service. The orders of termination passed, both in 1987 and 1994, which were the subject matter of the Writ Petition No. 1383/87 (being against the order dated 11.5.87) and Writ Petition No. 2973/94 (being against the order dated 31.5.1994), cannot, thus, be held to be bad in law.

In Mohd. Sartaj and Another Vs. State of U.P. and Others, , this Court clearly held that possession of an essential educational qualification was mandatory for obtaining the right to continue in the post. A legal right in this behalf cannot be said to be derived by an employee only because an interim order was passed by the High Court.

Actus Curiae neminem gravabit is a well known maxim. The orders passed by the appellant could not, thus, have been directed to be set aside by the High Court on the grounds stated therein. The High Court did not arrive at a finding that the Respondent was possessed of basic essential qualification, both as regard general education as well as the training.

It is also not a case where equity is in favour of the Respondent. Only because an interim order was passed in favour of the Respondent, the same would not mean that despite the fact that she did not possess requisite qualifications, her services would be allowed to continue. Even the old Rules were not applicable in her case. The matter would have been different had she acquired the requisite qualification prior to issuance of order of termination in 1994. Admittedly, she had not by then completed her training. Even at that point of time, she was not possessed of the Short Training Certificate. Her services had, thus, rightly been terminated and in that view of the matter, purported acquisition of qualification by her in 1996 would be of no significance."

From the facts and materials available on record, it is evident that the petitioner did not possess the required educational qualifications, as contemplated under the Rule of 266 of the Rules of 1996. The qualification, of Diploma of two years in Craft Teacher, acquired by the petitioner, has not been treated as equivalent to Diploma or certificate in basic teachers training of a duration of not less than two years or Bachelor of Elementary Education (B.El.Ed.), which is a condition of service as contemplated under Rule 266 of the Rules of 1996.

Merely on the ground that the petitioner was accorded appointment contrary to statutory recruitment rules and continued to hold the post in pursuance of an interim direction made by the Court, cannot confer any right in her favour. A legal right can be derived by an employee only if the claim is sustainable in accordance with law.

From the counter affidavit filed on behalf of the State-respondents and materials available on record, it is further reflected that those candidates, who were not found in possession of the essential educational qualifications were not retained in service. By now, it is well settled that principle of estoppel has no application against law.

For the reasons and discussions hereinabove, the writ petition is devoid of any substance and lacks in merit, and therefore, deserves to be dismissed.

Ordered accordingly.

In view of the final adjudication on the writ application, the stay application stands closed and the interim order dated 9th April, 2010 is hereby vacated.