Ramesh Kumar vs State of H.P. & Ors

Jyotsna Rewal Dua, J

While considering petitioner’s case for regularization of his services as TGT (Arts) in the year 2023, respondents realized that his initial appointment as TGT (Arts) in the year 2017 was not in consonance with the applicable Recruitment & Promotion Rules, (R&P) hence, an office order was issued, withdrawing petitioner’s appointment order as TGT (Arts). Feeling aggrieved, petitioner has instituted this writ petition.

The case

2(i) Petitioner was appointed as TGT (Arts) on contract basis on 29.09.2017 in the respondent education department. He joined as such and continued to discharge his duties. On petitioner’s completing requisite years of service, respondents in the year 2023, considered his case for regularization. At that stage, respondents realized that petitioner’s initial appointment on contract basis was not in conformity with the R&P Rules notified on 31.05.2012. Inasmuch as, the petitioner did not have requisite qualification for the post of TGT (Arts) as he had 40.8% marks in his graduation, whereas requirement under the R&P Rules for appointment as TGT (Arts) was 45%/50% marks in BA/B.Com/ with Bachelor of Education Degree for the unserved post of TGT (Arts) against which the petitioner was appointed.

2(ii) Respondents issued an office order on 02.06.2023, withdrawing petitioner’s appointment as TGT (Arts) on contract basis with immediate effect on the premise that he did not possess requisite qualification for appointment to the post as per applicable R&P Rules.

In the above background, petitioner instituted this writ petition on 08.06.2023, with the following prayers:-

“(i) That a writ in the nature of certiorari may kindly be issued to quash Office Order dated 02.06.2023 issued by respondent No.2 vide Annexure P-8 and the petitioner who is discharging his duties on the post of TGT (Arts) at GSSS Saur, Tehsil Ramshehar, District Solan, H.P. may kindly be permitted to serve during the pendency of the present writ petition;

i(a). That the Recruitment and Promotion Rules for the post of TGT(Arts) prescribing 45% minimum marks in graduation for appointment to the post may not be made applicable in the case of the petitioner or in the alternative same may kindly be held to be ultra vires of the Constitution of India and further against the criteria fixed by the NCTE and justice be done.

ii) That a writ in the nature of mandamus may kindly be issued to direct respondents No. 1 to 3 to regularize the services of the petitioner after completion of three years services on contract basis on the post of TGT(Arts) taking his date of appointment as 29.09.2017 with all consequential benefits and further the arrears on account of grant of increments from the initial date of appointment, regularization may kindly be directed to paid by the respondents to the petitioner alongwith interest at the rate of 12% per annum from the date the same fell due till its realization and justice be done;

iii) That a writ of mandamus may also be issued directing respondents No. 1 to 3 to count the service of the petitioner for increments, seniority, promotion etc. from his initial date of appointment i.e. 29.9.2017 and justice be done.”

Vide interim order dated 12.06.2023, operation and implementation of impugned office order dated 02.06.2023 was stayed. The respondents were restrained from terminating the services of the petitioner. He was permitted to perform his duties as TGT (Arts). Resultantly, petitioner is continuing to serve as TGT (Arts) on contract basis, though his services as TGT (Arts) have not been regularized by the respondents.

Heard learned counsel on both sides and considered the case file.

Consideration

4(i) It is not in dispute that petitioner was appointed on contract basis as TGT (Arts) on 29.09.2017. At that time, R&P Rules as notified on 31.05.2012 were applicable. Relevant portion of these Rules pertaining to TGT (Arts) is as under: -

“1. TRAINED GRADUATE TEACHER (ARTS):-

i) B.A./B.Com with at least 50% marks and 1-year Bachelor in Education (B.Ed.)

OR

B.A./B.Com with at least 45% marks and 1-year Bachelor in Education (B.Ed.) in accordance with NCTE (Recognition norms and procedure) regulations issued from time to time in this regard.

OR

Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor in Elementary Education (B.El.Ed.).

OR

Senior Secondary (or its equivalent) with at least 50% marks and 4 year B.A.Ed.

OR

B.A/B.Com with at least 50% marks and 1-year Bachelor in Education (B.Ed.) (Special Education)

AND

ii) Pass in Teacher Eligibility Test (TET), to be conducted by HP Subordinate Services Selection Board in accordance with the guidelines framed by the NCTE for the purpose.”

In order to become eligible for appointment as TGT (Arts), an applicant was, inter-alia, required to possess B.A./B.Com. with at least 45 % marks and one year Bachelor in Education (B.Ed.) in accordance with National Council of

Teacher Education (NCTE) (Recognition norms and procedures) Regulations issued from time to time in this regard.

4(ii). Petitioner had done his graduation in Arts with 40.8% marks. He obtained B.Ed. Degree in the year 2000. Petitioner had qualified Teacher Eligibility Test (TET) on 07.01.2015. Admittedly, petitioner being not in possession of 45% marks in his B.A. Degree, was not eligible to be appointed as TGT (Arts) on 29.09.2017 as per R&P Rules in force on the date of his appointment as TGT (Arts).

4(iii) The facts remains that notwithstanding the eligibility criteria laid down under the R&P Rules, petitioner was appointed as TGT (Arts) on contract basis on 29.9.2017 and he continued to discharge his services for next six years. In the interregnum, National Council for Teacher Education, issued a notification on 13.11.2019. Being relevant, it is extracted hereinafter: -

“NATIONAL COUNCIL FOR TEACHER EDUCATION

NOTIFICATION

New Delhi, the 13th November, 2019

F.No. NCTE-Reg/012/22/2019-US(Regulation)-HQ.—In exercise of the powers conferred by sub-section (1) of the Section 23 of Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009) and in pursuance of the notification number Government of India in the Ministry of Human Resource Development, Department of School Education and Literacy S.O. 750(E) dated 31st March 2010 published in the Gazette of India, Extraordinary, Part-II. Section 3, Sub-section (ii) dated the 5th April, 2010, the National Council for Teacher Education hereby makes the following amendments in the notification of the Government of India, National Council for Teacher Education, vide F. No. 61-3/20/2010-NCTE(N&S) published in the Gazette of India, Part III, Section 4, dated the 23rd August, 2010, namely:-

In the said notification in paragraph 1, in sub-paragraph (ii),-(A) in clause (a) for the words, figures, brackets and letters "Graduation with at least 50% marks and 1 year Bachelor in Education (BEd.)", the words, figure and letters "At least 50% marks either in Graduation or in Post-Graduation and B.Ed.” shall be substituted.

(B) After clause (b), at the end, the following proviso shall be inserted, namely: -

“Provided  that  minimum  percentage  of  marks  in graduation shall not be applicable to those incumbents who had already taken admission to the Bachelor of Education or Bachelor of Elementary Education or equivalent course prior to the 29th July, 2011”

This notification shall be deemed to have come into force on the 29th July, 2011.

Sd/-”

The above notification was regarding the minimum percentage of marks required by an applicant in Graduation and Bachelor in Education Courses for appointment as teacher. Proviso to the above notification laid down that minimum percentage of marks in graduation would not be applicable to those incumbents, who had already taken admission in Bachelor of Education or Bachelor of Elementary Education or equivalent course prior to 29.07.2011. The notification alongwith proviso was deemed to have come into force on & w.e.f. 29.07.2011.

4(iv) The R&P Rules notified on 31.05.2012, had prescribed eligibility criteria of B.A./B.Com. with at least 45% marks and one-year Bachelor in Education (B.Ed.) “in accordance with NCET (Recognition norms and procedures) Regulations issued from time to time in this regard”. The NCTE Regulations, issued on 13.11.2019, which are to be deemed to have come into force from 29.07.2011, are binding upon the respondent State. This is so held in Sanjay Kumar and others Vs. State of H.P. and others CWP No. 1068 of 2014, decided alongwith connected matters on 19.05.2014. Relevant portion from the judgment reads as under: -

“7. It has not been disputed at the Bar by the learned Advocate General that the training to be imparted to the teachers would be governed by the norms issued by the 'NCTE' from time to time as it is this body alone which has been recognized as the "Academic Authority" under the Act. It is further not disputed by the learned Advocate General that the State of its own does not lay down any qualification and has to abide by the qualifications and other norms laid down by the Academic Authority in accordance with the provisions of the Act. If that be the position, it cannot be disputed that letter Annexure PG insofar as it is in variance with the latest instructions issued by the 'NCTE' on 29th July, 2011 will have to be declared bad in law.”

In Manilal Vs. State of Rajasthan & Ors SLP(C)No. 13835 of 2022 decided on 10.09.2024, the Hon’ble Apex Court was dealing with a case where minimum educational qualifications were somewhat similar to the criteria prescribed under the R&P Rules involved in the instant case notified on 31.05.2012. The appellant therein had applied for the post of teacher, but he did not have requisite 45% marks in graduation. On that ground, he was denied appointment. Hon’ble Apex Court noticed that the appellant had taken admission in Bachelor of Education Course on 23.10.2009. Taking note of proviso to the NCTE notification dated 13.11.2019, respondents were directed to give appointment to the appellant there. Relevant portions from the judgment read as under: -

“5. The appellant applied for the post of Teacher under the said advertisement. It is undisputed that the appellant had 44.58% marks in his graduation. It is also undisputed that the appellant secured admission in the Bachelor of Education (B.Ed) course on 23.10.2009 i.e. the date on which he deposited the fee. This fact is admitted in the counter affidavit of the State filed before this Court in Para 7 and in the written submissions filed by the State in Para 1. The appellant, being admittedly from the reserved category, the qualifying percentage required for admission to the B.Ed Course was 40% marks in graduation (45% for general category) as is clear from the 12.04.2019 Press Release. The appellant fulfilled this criterion and obtained admission.

6&7 ……….

At this stage, on 13.11.2019, the National Council for Teacher Education [NCTE] issued a clarification by way of a supplementary notification which stated that minimum percentage of marks in graduation shall not be applicable to those incumbents who had already taken admission to the Bachelor of Education or Bachelor of Elementary Education or equivalent course prior to 29th July, 2011. It further stated that the notification of 13.11.2019 was to be made applicable from 29.07.2011. The relevant extracts of the notification is as follows: -

“(B). After clause (b), at the end, the following proviso shall be inserted namely:

“Provided that minimum percentage of marks in graduation shall not be applicable to those incumbents who had already taken admission to the Bachelor of Education or Bachelor of Elementary Education or equivalent course prior to the 29th July, 2011.

This notification shall be deemed to have come into force on the 29th July, 2011.

Sanjay Awasthi,

Member Secy (Advt III/4/ Exty/304/19) Note: The principal notification was published in the Gazette of India, Extraordinary, Part III, Section 4, Vide number F.No. 61-3/20/2010 NCTE (N & S) dated the 23rd August, 2010 and was subsequently amended vide number F.No. 61- 1/2011 NCTE (N & S) dated the 29th July, 2011. Explanatory Memorandum

The amendment notification number F.No. 61-1/2011 NCTE (N & S) dated the 29th July, 2011 issued by the National Council for Teacher Education was challenged before the Supreme Court in the case of Neeraj Kumar Rai and others Vs. State of U.P. and Ors. in Civil Appeal No. 9732 of 2017 and the Hon'ble Court vide its order dated the 25th July, 2017 had directed the National Council for Teacher Education to issue a clarification by way of a supplementary notification regarding the percentage of marks specified therein. Necessary amendment is required to be made retrospectively from the date of notification of the said rules. It is certified that none will be adversely affected by the retrospective effect being given to the amendment rules.

(Emphasis supplied)

The supplementary notification of 13.11.2019 was a sequel to the judgment of this Court in Neeraj Kumar Rai and Ors. Vs. State of U.P. and Others [Civil Appeal No. 9732 of 2017 decided on 25.07.2017].

It was noticed by this Court in Neeraj Kumar Rai (supra) that the 2009 Norms and Standards for Secondary Teacher Education Programme through Open and Distance Learning System leading to B.Ed. did not provide for any minimum percentage of marks in Bachelor’s degree. Thereafter, this Court noticed that in the NCTE notification dated 23.08.2010, the requirement of prescribed percentage of marks in graduation was laid down and on that basis the said requirement was incorporated in the 29.07.2011 notification. The appellants in Neeraj Kumar Rai (supra) relying on the judgments delivered by a Division Bench of the Rajasthan High Court in D.B. Civil Writ Petition No. 3964 of 2011 etc. [Sushil Sompura and Ors. Vs. State (Education) and Ors.] and the learned Single Judge of the Uttarakhand High Court in Writ Petition No. 772(SS) of 2011 etc. [Baldev Singh and Ors. Vs. State of Uttarakhand and Ors.] respectively contended that in case the admission to the B.Ed. course had been obtained prior to the prescription of the minimum qualifying marks by NCTE in Bachelor’s Degree, the minimum qualifying marks in graduation ought not to be insisted. Recording the submission of the learned Additional Solicitor General to the effect that the appellants therein are to be treated on par, this Court granted relief to the appellants therein on par with the relief granted by the Rajasthan and Uttarakhand High Courts.

11 to 15…….

In view of the same, we allow the appeal and set aside the impugned judgment of the High Court dated 27. 04.2022 in D.B. Spl. Appl. Writ No. 997 of 2019. We direct the respondent-authorities to treat the appointment given to the appellant, pursuant to the interim order of the Division Bench dated 23.10.2021, as a regular appointment and after reinstating the appellant grant consequential benefits. We direct that except for the period the appellant actually worked, he shall not be entitled to any back wages. However, fitment of pay shall be granted. Necessary orders shall be passed within a period of four weeks from today. No order as to costs.”

Petitioner had already rendered continuous services as TGT (Arts) with the respondents for six years when respondents discovered that petitioner did not possess requisite percentage of marks in his graduation. By this time NCTE notification dated 13.11.2019 had come into force and that too w.e.f. 29.07.2011. In accordance with the proviso thereto, condition of possessing minimum percentage of marks in graduation degree was not to be applicable to the incumbents, who had taken admission to B.Ed. prior to 29.07.2011. Petitioner was in possession of B.Ed. decree in the year 2000. In view of the fact that the notification dated 13.11.2019 had come into force retrospectively from 29.07.2011, the case of the petitioner is squarely covered under this notification.

4(v) It is not the case of the respondents that petitioner had concealed any facts at the time of his appointment as TGT (Arts) on contract basis on 29.09.2017.

In Radhey Shyam Yadav and Another etc. Vs. State of U.P. & Ors SLP (C) No.s 3877-3878 of 2022 decided on 03.01.2024 the appellant had been appointed in excess of the vacancy. The contention raised was that it was not the fault of the appellant and for wrong computation of the vacancy by the respondents, he could not be prejudiced. The Hon’ble Apex Court protected the appointment of the appellant with the following reasons: -

“26. To the same effect is the ratio of the judgment of this Court in Dr. M.S. Mudhol and Another vs. S.D. Halegkar and Others, (1993) 3 SCC 591 wherein, in para 6, it was observed as under:-

"6. Since we find that it was the default on the part of the 2nd respondent, Director of Education in illegally approving the appointment of the first respondent in 1981 although he did not have the requisite academic qualifications as a result of which the 1st respondent has continued to hold the said post for the last 12 years now, it would be inadvisable to disturb him from the said post at this late stage particularly when he was not at fault when his selection was made. There is nothing on record to show that he had at that time projected his qualifications other than what he possessed. If, therefore, in spite of placing all his cards before the selection committee, the selection committee for some reason or the other had thought it fit to choose him for the post and the 2nd respondent had chosen to acquiesce in the appointment, it would be iniquitous to make him suffer for the same now. Illegality, if any, was committed by the selection committee and the 2nd respondent. They are alone to be blamed for the same."

The situation of the appellants in the present case is no different from the individuals whose appointments were protected in the cases cited hereinabove. They had no blameworthy conduct. They were bona fide applicants from the open market. The alleged mischief, even according to the State, was at the end of the School and its Manager. It will be a travesty of justice if relief is denied to the appellants. Enormous prejudice would also occur to them.”

As already noticed above, the respondents have not alleged any malafide or any overt act on part of the petitioner in securing appoint as TGT (Arts) on contract basis. The illegality, if any, in appointing the petitioner as TGT (Arts) on 29.09.2017 was committed by the respondents. Petitioner had already rendered six years of service as TGT (Arts) when respondents realized the mistake in his appointment. It will be iniquitous to turn the clock back to 29.09.2017, especially when NCTE notification issued on 13.11.2019 comes to petitioner’s rescue. Hence, ratio of above judgment squarely applies to the case of the petitioner.

In view of above, this writ petition is allowed. The impugned office order dated 02.06.2023 (Annexure P-6) is quashed and set aside. Petitioner’s appointment as TGT (Arts) is protected in light of NCTE notification dated 13.11.2019 (Annexure P-12) and also taking into consideration the peculiar facts and circumstances of the case, wherein petitioner without being at fault has been allowed to serve the respondents for six years before issuing the impugned office order dated 02.06.2023 withdrawing the appointment from him. Petitioner shall be deemed to have been validly appointed pursuant to office order dated 29.09.2017. All consequential benefits, shall follow including petitioner’s regularization on that basis.

Pending miscellaneous application(s), if any, also to stand disposed of.