Santosh Kumar vs State of Raj. and Another

Gopal Krishan Vyas, J.—In this writ petition, petitioner has prayed for a direction to the respondents to take him back on duty and the order dated 27/2/1999 (Annex.3) may be declared illegal to the extent it orders that appointment of petitioner is temporary and further it may be declared that petitioner was appointed substantively. Further, it is prayed that respondents may be directed to allow salary to the petitioner for summer vacation.

According to the facts of the case, applications for recruitment to the post of Physical Teacher Gr.III were invited by the District Education Officer, Sriganganagar by way of advertising vacancies. The petitioner applied for the said post as he was possessing requisite qualifications to be appointed as Physical Teacher Gr.III in accordance with the provisions of Rajasthan Education (Subordinate Service) Rules, 1971 (for short `the Rules, 1971'' hereinafter). The petitioner applied under the reserved category of OBC. On the basis of the qualification possessed by the petitioner i.e. graduation with Bachelor of Physical Education (B.P.Ed.), he was found suitable for appointment and after due selection in accordance with Rule 20 of the Rules of 1971, the petitioner was provided appointment vide Annex.3. In the appointment order, name of petitioner appeared at serial No. 1.

Upon perusal of Annex.3, appointment order, it is clear that it was made on temporary basis till the end of academic session.

The petitioner joined the services in pursuance of said order and at the end of session 1998-99 his services were discontinued. On reopening of academic session w.e.f. 1/7/1999, the petitioner filed an application for joining duty but the Head Master of Rajkiya Secondary School, Fatuhi (Shivpur) refused to take petitioner on duty. When the Head Master of the school refused to take him on duty then petitioner made inquiry from the office of District Education Officer and he came to know about a letter dated 1/7/1999 addressed by Senior Deputy District Education Officer (Secondary) to Director, Secondary Education, Rajasthan, whereby, he sought guidance with regard to recognition of B.P.Ed. qualification obtained by the candidates after 1/7/1995 from Nagpur University. Due to the reason that petitioner acquired B.P.Ed. qualification from Nagpur University after 1/7/1995, he was not given reappointment but other persons, who were appointed along with the petitioner were provided appointment. As per petitioner, in all 23 candidates were given appointment vide order dated 27/2/1999 and out of 23 candidates only 22 candidates joined their duties and they worked till end of academic session 1998-99 and on reopening of academic session 1999-2000 w.e.f.1/7/1999 only 14 persons were provided reappointment.

According to the petitioner, candidates who are possessing qualification of B.P.Ed. from Nagpur University have been given appointment along with petitioner in Februrary, 1999 by identical order and were taken back on duty on reopening of the school at the commencement of academic session.

Learned Counsel for the petitioner vehemently argued that denial of appointment to the petitioner is highly discriminatory inasmuch as it is violative of Article 14 of the Constitution of India because similarly situated persons were provided appointment on commencement of academic session and there was no reason to deny appointment to the petitioner.

As per petitioner, he has acquired the qualification of B.P.Ed. from the University established by law which does not need recognition and on the basis of such qualification he is eligible for appointment but the respondents illegally denied appointment to the petitioner at the commencement of academic session, whereas, on the basis of same qualification he was duly selected under the provision of the Rules, 1971.

Per contra, learned Counsel for the respondents while filing reply submitted that as per National Council for Teachers Education Act, 1993, it is mandatory for all the institutions who provide degree in teachers training to get recognition from the Council. But in the instant case, the institution from where the petitioner has acquired qualification i.e. Nagpur University has not been granted recognition by the Council after 1995, therefore, the degree obtained by any candidate after 1995 is not a valid degree for appointment as per the Act of 1993 and petitioner has acquired B.P.Ed. Qualification from the Nagpur University in the academic session 1997-98, therefore, he has acquired degree from the University, which is not recognised by the National Council for Teachers Education. It is, therefore, submitted that action of the respondents in not providing appointment to the petitioner on commencement of new academic session w.e.f. 1/7/1999 is perfectly in consonance with law.

By way of filing additional affidavit, it is submitted by the petitioner that he has obtained degree in B.P.Ed. by pursuing studies at late Madhav Rao Tidkae College of Physical Education, Muda (Nagpur),which is affiliated with Nagpur University. Further in para No. 3 of the additional affidavit, it is stated by the petitioner that late Madhav Rao Tidkae College of Physical Education, Muda was granted provisional recognition by the NCTE for B.P.Ed. course upto the year 1998-99. He has placed on record a copy of the order dated 28/8/1999, whereby, provisional recognition to the college was granted.

Learned Counsel for the petitioner also submitted that the case of petitioner is squarely covered by the decision rendered in Ummed Ali v. State of Rajasthan and Ors. D.B.Civil Writ petition No. 2887/99 decided on 18/3/2004.

I have considered the rival submissions made by both the parties.

First of all, from the facts of the case, it is clear that petitioner was selected in pursuance of the advertisement issued by the respondent District Education Officer Sriganganagar and after due selection he was provided appointment to the post of Physical Teacher under the reserved category of OBC and his name appeared at serial No. 1 in the appointment order. It is also clear from the appointment order that this appointment was temporary in nature till end of academic session.

In this case, denial of reappointment by the respondents is only on the ground that petitioner acquired qualification of B.P.Ed. from Nagpur University and as per respondents said institution was not recognized under the Act of 1993. In my opinion, this contention of the respondents is totally baseless in view of Annex.A/9 submitted by the petitioner along with additional affidavit, whereby, provisional recognition was granted to the institution upto the academic sessions 1998-99 and petitioner acquired the qualification of B.P.Ed. in the academic sessions 1997-98. Therefore, as per the judgment of Division Bench of this Court in Ummed Ali''s case (supra),wherein, it has been held that a candidate acquiring qualification from the institution who possesses provisional recognition in a particular academic year cannot be ignored by the respondents and accordingly, the petitioner is entitled for appointment. The relevant part of the Division Bench decision reads as under:

The combined effect of reading of these provisions leads us to conclude that the Jyotiba college of Physical Education, Hingana Road, Nagpur, where the petitioner was trained for physical education, was provisionally recognized upto the academic session 1998-99. The degree for physical education granted to the petitioner in the year 1997-98 to a trainee in that institute cannot be ignored for the purpose of considering requisite eligibility for giving appointment to the post of Physical Training Instructor.

While holding as above, the Division Bench has passed the order,which reads as under:

In view of the above, the writ petition is allowed. The impugned order terminating the services of the petitioner w.e.f. 15/5/1999 is quashed and it is declared that the petitioner continued in service in pursuance of his regular selection made in pursuance of the advertisement issued by the District Education Officer, Churu in 1998. The petitioner shall be reinstated within a period of 15 days. The petitioner shall also be entitled to all consequential benefits, which shall be given to him within a period of three months from the date of service of writ or submission of certified copy of the order, whichever is earlier. No costs.

In my opinion, the facts of present case are identical to the case of Ummed Ali (supra) and petitioner was fully eligible for appointment on the post of Physical Teacher Gr.III at the commencement of academic year 1999-2000 w.e.f. 1/7/1999 because the qualification acquired by the petitioner is a validqualification for appointment as the same was acquired when the institution was provisionally granted recognition and the respondents wrongly denied reappointment to the petitioner so also respondents committed an error while providing temporary appointment till end of academic session because advertisement for recruitment to the post of Physical Teacher Gr.III was issued for substantive posts and appointments were made in accordance with Rules of 1971 against substantive vacancies.

The appointment ought to have been given on probation in accordance with Rules of 1971 but appointment order was issued illegally till end of academic session and thereafter upon commencement of new academic session w.e.f. 1/7/1999 the petitioner''s case was wrongly ignored. In the facts and circumstances of this case, it is held that the petitioner has acquired B.P.Ed qualification during currency of provisional recognition to the institution, therefore, he was to be given substantive appointment right from his first appointment on the post of Physical Teacher Gr.III.

In this view of the matter, this writ petition is allowed. The respondents are directed to provide appointment to the petitioner on the post of Physical Teacher Gr.III w.e.f. the date when similarly situated persons were provided appointment. Further, respondents are directed to pay salary to the petitioner for vacation period also because the petitioner was given appointment against substantive post after due selection as per the Rules of 1971. The respondents shall grant all consequential benefits to the petitioner from the date of his initial appointment i.e. 27/2/1999 within a period of one month from today.