Shivananda B. Nagur and Others vs State of Karnataka and Others

P.S. Dinesh Kumar, J.—Petitioners are unsuccessful applicants before the Karnataka Administrative Tribunal (hereinafter referred to as ''Tribunal'', for short) and calling in question the order of the Tribunal dated 03.12.2010 in Applications No. 1437 to 1442/2010, dismissing their applications.

Gravamen of petitioners'' case is that they are Assistant Primary School Teachers appointed on various dates and working in various schools and they are aggrieved by the notification No. DPAR 59 SRE 2002, Bangalore, dated 24.06.2003, whereby the qualification for Teachers has been amended. Petitioners have acquired a degree in Bachelor of Arts (B.A.) and Bachelor of Education (B.Ed.) and studied English language as one of the optional subjects at degree level in both B.A. and B.Ed. They are eligible for promotion to the post of Assistant High School Masters Grade-II in English language in High Schools. Respondent No. 5 prepared a common seniority list of Teachers working in primary school in Dharwad District and in the provisional seniority list, Assistant Primary School Teachers who had acquired Diploma Certificate in lieu of studying English language as one of the optional subjects at the degree level were included. Petitioners objected to the provisional seniority list by filing objections. The respondent No. 5 realising the mistake sought to rectify the same by dropping the names of the candidates who had acquired Postgraduate Diploma Certificates. In pursuance thereof, the final provisional seniority list dated 03.02.2010 was prepared and the respondent No. 5 fixed the date for counseling as 08.02.2010 to consider the cases of the petitioners for promotion to the post of Assistant High School Teacher Grade-II. However, the said counseling was cancelled. On enquiry, the petitioners learnt that the respondent No. 5 had passed an order dated 09.02.2010 stating that as per the Karnataka Education Department Services (Department of Public Instructions) (Recruitment) (Amendment) Rules, 2002 (hereinafter referred to as ''Rules 2002'', for short), the candidates who had studied English language as an optional subject or acquired Diploma Certificate in English from Regional Institute of English, South India (hereinafter referred to as ''RIESI'', for short) could be considered for the purpose of appointment and promotion to the post of Assistant High School Teacher Grade-II. Thus, in terms of the amended Rules 2002, the teachers who acquired a Diploma Certificate in English from the RIESI were sought to be treated on par with the petitioners. The petitioners challenged the said rules before the Tribunal on various grounds. The Tribunal, by the impugned order has dismissed their applications. Hence, these writ petitions.

We have heard Sri Santosh B. Malagoudar, learned counsel appearing for the petitioners, Smt. Veena Hegde, learned H.C.G.P. appearing for respondents No. 1 to 5 and Sri S.G. Kadadakatti, learned counsel appearing for R-6 and R-7.

Learned counsel for the petitioners submits that the qualification for candidates to be appointed as teachers is prescribed by the National Council for Teacher Education (hereinafter referred to as ''NCTE'', for short) by issuing notifications from time to time. He submits that the Regulations applicable in the instant case were notified by the NCTE on 03.09.2001 whereunder the qualification for Secondary/High School is prescribed as Graduate in Bachelor of Education (B.Ed.) or its equivalent. He submits that the said Regulations are applicable for appointment of teachers in all formal schools established, run or aided, recognized by the Central Government or State Governments for imparting education at elementary, secondary and senior secondary levels. He draws our attentions to the Clause No. 5 of the said Regulations, which deals with the power to relax the qualifications.

NCTE on receipt of a reference from the concerned State Government, if satisfied that special circumstances existed warranting relaxation of some of the provisions of the regulations for some time, may grant such relaxation of such provision to such an extent and subject to such conditions as it may consider necessary. He submits that by the impugned Rules, the State Government have amended the qualification for promotion and direct recruitment of teachers. He draws our attention to Rule 4 of the amended Rules, which reads as follows:

"4. Amendment of Recruitment Rules

The existing recruitment rules may be modified within a period of three years so as to bring them in conformity with the qualifications prescribed in the Schedules. Meanwhile, teachers appointed as per the existing recruitment qualifications, subsequent to the issue of these Regulations, will be required to acquire qualifications as prescribed in the Schedules."

and submits that this amendment renders candidates acquiring a Diploma Certificate eligible for consideration for appointment/promotion as Language Assistant in English though it runs contrary to the NCTE Regulations. During the course of hearing, he has placed on record two letters dated 10.06.2011 and 21.04.2011 issued by the Information Officer of the Regional Institute of English, South India. It is stated in letter dated 10.06.2011 that the NCTE is offering one year distant mode program titled ''Post Graduate Diploma in English Language Teaching'' (PGDELT). Learned Counsel further submits that as admitted by RIESI itself, there is no certificate called Diploma Certificate in English language. Adverting to the letter dated 21.04.2011, he submits that two specific queries viz., whether Postgraduate Diploma in English is equivalent to degree given by a University and whether a Postgraduate Diploma in English is equivalent to B.Ed. course were raised in the R.T.I. application and the RIESI has answered the said queries in the negative. He therefore submits that the impugned notification amending the rules insofar as it relates to appointment and promotion as Language Assistant in English is void ab initio and liable to be struck down. Assailing the judgment of the Tribunal dated 03.12.2010, he submits that the Tribunal misdirected itself with regard to the qualifications and dismissed their applications on the ground that the petitioners were unable to demonstrate that the prescription of qualification is in violation of Constitution or any Statutory provision. Therefore, he prays that these writ petitions be allowed.

Per contra, learned H.C.G.P. supports the order passed by the Tribunal by contending that the amendment has been brought to facilitate the candidates who have a degree in different discipline. She submits that acquisition of a Diploma Certificate from the RIESI was a condition precedent for the candidates who qualified themselves to be considered for appointment or promotion to the post of Language Assistant in English. She submits that the State Government being the employer, have a right to prescribe the qualification and there is no error in issuing the impugned notification and accordingly prays for dismissal of the writ petitions.

Learned Counsel Sri S.G. Kadadakatti appearing for private respondents No. 6 to 8 submits that the said respondents have obtained the Diploma Certificate from the RIESI and thus complied with the prescription of qualification contained in the notification and they are discharging their duties as teachers in English at par with the petitioners. He submits that the private respondents are as efficient as a teacher who had studied English as an optional subject at the degree level. He further submits that the private respondents cannot be disturbed after having served in the Government schools for number of years. Accordingly, he prays for dismissal of the writ petitions.

In the background of pleadings, the following points arise for consideration of this Court:

1) Who is the authority to prescribe qualifications for Teachers?

2) Whether the State Government can prescribe and amend the qualifications for Teachers?

Re: Point No. 1:

The impugned rules read as follows:

"Personnel and Administrative Reforms Secretariat

Notification

No. DPAR 59 SRE 2002, Bangalore, dated: 24.06.2003.

Whereas the draft of the Karnataka Education Department Services (Department of Public Instruction) (Recruitment) (Amendment) Rules, 2002 was published as required by sub-section (2) of section 3 of the Karnataka Civil Services Act, 1978 (Karnataka Act 14 of 1990) in Notification No. DPAR 59 SRE 2002, dated 31st October 2002 in Part-IVA of the Karnataka Gazette Extraordinary No. 1474, dated 31st October 2002 inviting objections and suggestions from all persons likely to be affected thereby within thirty days from the date of its publication in the official Gazette.

RULES

Amendment of Schedule.-In the schedule to the Karnataka Education Department Services (Department of Public Instruction) (Recruitment) Rules, 1967 (hereinafter referred to as the said Rules) under the heading Class III, non-gazetted posts,-

(1) for the entries relating to the category of posts of Secondary School Assistant (Grade-II) cadre. Graduate Assistant Masters and Mistress in Government High Schools. Higher Secondary Schools, practicing high School attached to college of education and multipurpose High Schools, Senior Primary Schools, Teachers Training Institutions, Schools for Deaf and Blind, Vocational Institutions for Women inspecting Officers, Administrative Officers of municipal Schools, Boards, English Teachers and Literature Assistants in Sanskrit Colleges, Academic Assistant in the office of the Director of Public Instructions, Graduate Head Masters and Head Mistress of senior primary schools, craft Organiser, Non-Gazetted Head Masters of Teacher Training Institution at serial number 37, the following shall be substituted namely:-

NCTE was set up in the year 1993 by a resolution as a National Body to advice the Central Government and State Governments in all matters pertaining to Teacher education. Since it had only an advisory jurisdiction, the NCTE Act, 1993 (Act 73 of 1993) was promulgated. The object of the said Act is to provide for establishment of a National Council with a view to achieve planned and coordinated development of the teacher education system throughout the country, regulation and proper maintenance of norms and standards in teacher education system and for matters connected therewith. The educational qualification for teacher is dealt in Chapter-I. The functioning of the NCTE are dealt in Chapter III of the Act. Section 12(d) requires NCTE to lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognised institutions. Thus, it is clear that NCTE is the competent body to prescribe minimum qualification for teachers. By the Regulations 2001, qualification prescribed by NCTE for Secondary/High School Teachers is a graduate degree with B.Ed or its equivalent. Regulation 5 of 2001 Regulations gives power to the NCTE to relax any conditions and it reads as follows:

Power to relax:

Where the Council is satisfied, on receipt of reference from the concerned Government, that special circumstances exist warranting relaxation of some of the provisions of the regulations for sometime it may grant relaxation of that provision to such extent and subject to such conditions as it may consider necessary in a just and equitable manner.

Thus, it is clear that the qualification prescribed by NCTE is a mandatory requirement for candidates to be considered for recruitment as teachers in educational institutions established, run or aided or recognised by central or state government and other authorities for imparting education. By the impugned Rules of 2002, the respondent/State has unilaterally diluted the qualifications insofar as the teachers to be appointed as Language Assistants. The first column of the impugned notification indicates various cadres of teachers. The next column indicates the method of recruitment and the third column indicates qualification. Presently, we are concerned with Language Assistants for secondary schools. The qualification prescribed for a Language Assistant in column No. 4 is as extracted hereinabove. The prescribed qualification for language Assistant is a Bachelor''s degree in Arts with the concerned language as one of the optional subjects. Under the impugned Rules, a candidate who holds a Postgraduate Diploma Certificate in English from RIESI shall also become eligible for consideration. This relaxation provided in the impugned Rules, 2002 runs counter to the minimum academic qualification prescribed by the NCTE. If the State Government as the employer desired to dilute qualification prescribed by the NCTE, the same ought to have been done seeking relaxation by taking recourse to Regulation 5 of 2001 Regulations. The notification is silent with regard to relaxation, if any, obtained from the NCTE. No material is placed before this Court by the respondent/State to show that prior approval/relaxation was obtained from the NCTE in this behalf. Therefore, the amendment of Rules with regard to the qualification prescribed for Language Assistant in English are unsustainable in law. The Tribunal, while dealing with this aspect of the matter has misdirected itself by holding that the NCTE regulations which lay down minimum qualification also gives liberty to the State Government to prescribe equivalent qualification and that the impugned amendment does not alter the prescribed qualification under the NCTE Regulations. This finding of the Tribunal, in our considered view is perverse. The minimum qualification for Secondary/High School Teacher is, Graduation with Bachelor''s degree in Education (B.Ed.) or its equivalent. In the case on hand, the teachers are sought to be appointed for English language. By the impugned notification, the State Government have unilaterally relaxed the condition to promote a candidate who has not studied the concerned language viz., English in the present case as an optional language at the degree level. It means that a bachelor degree holder who has never studied English language throughout and acquires a diploma from RIESI can be appointed as a Language Assistant to teach English. RIESI in its reply communication dated 21.04.2011 has categorically stated that the PGDE is not equivalent to a degree given by the University. However, by applying the amended rules, a candidate who has a degree in Arts in any discipline will become eligible for consideration to the post of Language Assistant in English with acquisition of a Diploma Certificate in English. If, this logic is extended, then a candidate with a bachelor''s degree in physical education training were to acquire a Diploma Certificate in English, he shall become eligible for consideration for appointment as Language Assistant in English language. This is absurd. The purpose of appointing teachers is to ensure impartment of knowledge is fruitful. This can only happen if the candidates who have studied a particular subject at the degree level appointed to teach the very subject. The impugned notification defeats logic. We may usefully refer to a judgment of the Hon''ble Supreme Court in the case of Ranu Hazarika and Others Vs. State of Assam and Others, , wherein the Hon''ble Supreme Court has delineated and recognized the power of NCTE to lay down minimum qualifications for a person to be employed as a teacher by holding thus.

Therefore, in our considered view, the 2002 Rules are not sustainable in law. Consequently, the impugned order passed by Tribunal is liable to be set aside. In the result, we pass the following:

(i) The appeal is allowed.

(ii) The order dated 03.12.2010 passed by the Tribunal in Applications No. 1437 to 1442/2010 is set aside.

(iii) The impugned notification No. DPAR 59 SRE 2002, Bangalore, dated 24.06.2003 is quashed.

(iv) Respondent/State is directed to redraw the seniority list as expeditiously as possible and at any rate not later than six months from the date of receipt of a copy of this order.

Ordered accordingly. No costs.