Umesh Kumar Sharma vs State of Raj. and Others

Veerender Singh Siradhana, J—On 25th February, 2015, the counsel appearing on behalf of the petitioner prayed for an adjournment of the matter and was allowed to argue the matter by the next date positively. Time was prayed for and allowed on 12th March, 2015, 27th March, 2015 and 8th April, 2015, and again on 7th July, 2015. Today, neither the counsel nor the petitioner is present to prosecute the writ proceedings. No request for adjournment has been made either.

This is second round of litigation by the petitioner. Earlier writ application being SBCWP No. 9971/2013 (Umesh Kumar Sharma Vs. State of Raj. & Ors.) was disposed off by this Court on 19th June, 2013, with a direction to the petitioner to address a detailed representation to respondent No. 2 (The Director, Elementary Education, Rajasthan, Bikaner), who shall examine the case of the petitioners for the purpose of treating them within the age limit in the light of the judgment in SBCWP No. 1839/2009 (Smt. Shailesh Verma & Anr. Vs. State of Rajasthan & Ors. connected petitions), and would pass necessary orders. In compliance, the respondent No. 2 made a detailed order dated 5th July, 2013 (Annexure-6), declining the claim of the petitioner for relaxation in the upper age limit of 35 years, as contemplated under Rule 15(x) of the Rajasthan Education Assistant Service Rules, 2013 (hereinafter referred to as ''the Rules 2013'').

Briefly, the skeletal material facts are that the petitioner who was initially appointed as Vidhyarthi Mitra, in the month of October, 2003, continued up to May, 2013, and has claimed relaxation in the upper age limit of 35 years so as to fall within the age criteria of Rule 15(x) of the Rules of 2013, wherein the age criteria is 18 years and must not have attained the age of 35 years on the first day of January next following year for receipt of application forms.

I have considered the pleadings and grounds of the writ application and gave my thoughtful consideration to the reasons detailed out in the order dated 5th July, 2013 (Annexure-6), passed by respondent No. 2, while declining the relaxation in the outer age limit of 35 years to the petitioner.

Vidhyarthi Mitra Scheme was not a regular scheme and was evolved only to meet out the exigencies of nonavailability of the regular teacher(s) in a particular academic session. Moreover, the Scheme was operated on session to session basis by employing the incumbents (Vidhyarthi Mitra), and their employment ended with the end of the academic session.

The scheme of para-teacher was a regular Scheme, which was continued though the services of para-teachers were not governed by any definite set of Rules. The incumbents, who were, appointed as para-teachers, were treated to be within the age limit though, in fact, they may not be. Thus, having regard to the nature of two schemes i.e. Vidhyarthi Mitra and Para-teacher(s), which operated in different areas with different object and could not be treated to be similar for the purpose of grant of relaxation in the upper age limit to the petitioner.

A Division Bench of this Court in DBSAW No. 21/2004 (Hitesh Kumar Vs. State of Raj.), while examining the issue of termination of the incumbents, whose contractual employment came to an end and the State-respondents refused to continue them, was held valid for the Scheme under which they were appointed, was declared unconstitutional by the Court and consequently the State Government abolished the Scheme. Affirming the view of the learned Single Judge, the Division Bench of this Court in the case of Hitesh Kumar (supra), held thus:

"9. The perceptible change in law, as noticed by learned Single Judge, has also been accepted by the State of Rajasthan by amending Rules of 1996 and Section 89 of the Rajasthan Panchayati Raj Act, 1994 (''Act of 1994'') by the Rajasthan Panchayati Raj (Amendment) Act, 2000 after which it was no longer possible to allow any ad hoc arrangement to be continued. Learned Single Judge found that in view of the change in law by constitutional amendment and by regulations framed by NCTE by notification dated 23.08.2010 and amendments in the rules related to recruitment of teachers in the State of Rajasthan, the scheme of Shiksha Mitra which was an ad hoc scheme as stop gap arrangement until recruitment is made, has become unconstitutional. It is useful to quote the observations made by learned Single Judge in paragraphs 26 to 39 as follows:-

"26. It is to be noticed that as per Rule 263 of the Rules of 1996, specifically provides that subject to the provisions of the Rules and the directions of the Government, if any, the Panchayat Samiti or Zila Parishad shall determine and intimate the Committee (District Establishment Committee) every year the number of vacancies anticipated under each category during the year and the number of persons likely to be recruited by each method. That apart, Rule 284(1) of the Rules of 1996 mandates that in case no selection has been made or no person selected by the Committee is available at any time for filling a vacancy, appointment may be made by the Appointing Authority on urgent temporary basis for a period not exceeding six months provided that such person shall be appointed only on contract basis with prior approval of the District Establishment Committee in case of Panchayats and approval of the State Government in case of Panchayat Samiti/Zila Parishad. Besides, as per Rule 284(2), if it is proposed to fill the vacancy by direct recruitment temporarily nearest Employment Exchange may be asked to send names of persons possessing required qualification at least five times the number of vacancies to be so filled and out of those persons, the Appointing Authority shall appoint the persons suitable for the post.

The recruitment to the post of Senior Teacher and School Lecturer is governed by the Rules of 1971 and Rules of 1970 respectively, framed by the Governor in exercise of the power conferred by proviso to Article 309 of the Constitution of India. The recruitment to the posts of Senior Teachers and School Lecturers are required to be made by direct recruitment as well as by promotion in the proportion indicated in the Schedule attached to the relevant recruitment Rules. The recruitment Rules specifically provides for yearwise determination of actual number of vacancies occurring belonging to the promotion and direct recruitment quota as on 1st April every year. It is pertinent to note that in exercise of the power conferred by proviso to Article 309 of the Constitution of India, the Governor of Rajasthan vide notification dated 23.9.08, promulgated Rajasthan Various Service (Fourth Amendment) Rules, 2008, which specifically provides that direct recruitment to the post specified in the Schedule shall be held at least once a year unless the Government decides that the direct recruitment for any of these posts shall not be held in any particular year. The Rules of 1970 and Rules of 1971 finds mention at serial No. 20 and 52 of the Schedule. It is not the case of the respondents that any decision was taken by the Government not to make the recruitment for any of the posts en-cadred under the Rules of 1970 and Rules of 1971. Thus, indisputably, in terms of the relevant recruitment Rules, the State Government is under an obligation to determine the yearwise vacancies and proceed with the recruitment process to fill up the vacancies in the cadre in accordance with the relevant Rules.

It is pertinent to note that Rule 27 of the Rules of 1970 and Rule 28 of the Rules of 1971 provides for urgent temporary appointment against the vacancy in service which cannot be filled in immediately either by direct recruitment or by promotion under the Rules, by appointing in an official capacity the persons eligible for appointment to the post by promotion or by appointing temporarily thereto a person eligible for direct recruitment to the service under the provisions of the Rules. Suffice it to say that under the relevant recruitment Rules, no person lacking eligibility qualification could be appointed on the various posts in the cadre even on urgent temporary basis.

In the backdrop of position of law, as aforesaid, adverting to the Scheme, it is significant to note that the appointment of Vidhyarthi Mitra on contractual basis thereunder was sought to be made on the pretext that the regular recruitment process of Teachers in various cadres is likely to take a long time. One fails to understand that if regular recruitment in the cadre was likely to take a long time and there was non-availability of the duly selected candidates then what prevented the State Government from resorting to recruitment process under the Rules for urgent temporary appointment against the vacant posts of eligible candidates till the availability of duly selected candidates. Strangely enough under the Scheme framed the requirement of the eligibility of the candidates for the recruitment to the post of Teachers as provided for under the relevant recruitment Rules and by NCTE was also ignored inasmuch as the Scheme permitted even the engagement of persons who are not trained to discharge the duties of the Teachers in various Schools.

It is well settled that the regular posts in the cadre are required to be filled in by way of the regular recruitment process under the Rules. Of course, as noticed above, the urgent temporary appointment to the extent permissible under the Rules can be made till the availability of regularly selected candidates but then, the appointment on contractual basis is not envisaged under the relevant recruitment Rules. As a matter of fact, even the urgent temporary appointment in any public service to any post de hors the relevant Rules without permission of the competent authority is prohibited under Section 4 of the Act of 1999. Rather, the appointment in contravention of the provisions of the Act of 1999 is an offence punishable under the provisions of Section 14 of the Act of 1999.

In this view of the matter, the Vidhyarthi Mitra Scheme introduced by the State Government providing for engagement of Vidhyarthi Mitra on contractual basis against the vacant posts of Teachers in various cadres ignoring the eligibility qualification prescribed and the procedure prescribed for the recruitment is ex facie dehors the relevant recruitment Rules. That apart, the recruitment of Teachers lacking eligibility qualification runs contrary to the Regulations, 2001 framed by the NCTE, which have statutory force. As a matter of fact, the NCTE having prescribed the eligibility qualification, the State Government cannot proceed to appoint the persons on the posts of Teachers by giving the fictitious designation i.e. Vidhyarthi Mitra to teach the children who are mandatorily required to be taught by the persons eligible for recruitment to the post as per the eligibility qualification laid down by the NCTE.

As noticed above, by way of Constitution (Eighty Sixth Amendment) Act, 2002, Article 21A was inserted in the Constitution which makes right to education, a fundamental right, and provides that State shall provide free and compulsory education all children of 6 to 14 years in such manner as the State by law provides. Indisputably, so as to implement the provisions of Article 21A of the Constitution, the Act of 2009 has been enacted by the Parliament which mandates that only the persons possessing minimum qualification as laid down by an academic authority authorised by the Central Government by notification shall be eligible for appointment on the posts of Teachers. As a matter of fact, it is not even disputed before this Court that the academic body, NCTE, under the authorization of the Government has already laid down the eligibility qualification and therefore, any person not possessing the requisite qualification as provided for by the NCTE cannot be appointed on the posts of Teachers in the various schools run by the State or otherwise.

It needs to be noticed that besides providing for the eligibility qualification for recruitment to the posts of Teachers, the Act of 2009, Section 6 thereof specifically mandates that for carrying out the provisions of the Act, the appropriate Government and the local authority shall establish within such area or limits of neighborhood as may be prescribed a school where it is not established, within a period of 3 years from the commencement of the Act. As per Section 7 of the Act of 2009, the Central Government and the State Government have concurrent responsibility for providing funds for carrying out the provisions of the Act. As per mandate of Section 8, the appropriate Government is under an obligation to provide infrastructure including school buildings, teaching staffs and learning material to ensure good quality elementary education conforming to the standards and norms specified in the Schedule. The emphasis under the Act is on ensuring that all children have access to quality education that enables them to the skills, knowledge, values and attitude necessary to become responsible and active citizens of India. To achieve the intended objects even the Pupil-Teacher Ratio in a school has been specified in the Schedule which is mandated to be maintained in each school by virtue of provisions of Section 25 of the Act. Suffice it to say that right to compulsory education enshrined in Article 21A of the Constitution of India presupposes quality education to the children and therefore, the State is under an obligation to make all efforts to ensure that the children of tender age may not suffer on account of teaching by unqualified teachers. In this view of the matter, the action of the State in continuing with the Vidhyarthi Mitra Scheme and permitting the teaching by the unqualified persons in the schools run by the State is avowedly illegal, arbitrary and falls foul of Article 21A of the Constitution of India.

The Hon''ble Supreme Court time and again has emphasized for quality educations in the schools and deprecated the practice of employing unqualified untrained teachers to teach the children of tender age in the schools.

In N.M. Nageshwaramma and Others Vs. State of Andhra Pradesh and Another, AIR 1986 SC 1188 : (1986) 1 SCALE 1198 : (1986) 1 SCC 166 Supp : (1986) SCC 166 Supp , the Hon''ble Supreme Court observed:

"The teachers'' training institutes are meant to teach children of impressionable age and we cannot let loose on the innocent and unwary children, teachers who have not received proper and adequate training. True they will be required to pass the examination but that may not be enough. Training for a certain minimum period in a properly organized and equipped training institute is probably essential before a teacher may be duly launched."

In Andhra Kesari Educational Society Vs. Director of School Education and Others, AIR 1989 SC 183 : (1988) 4 JT 431 : (1988) 2 SCALE 1334 : (1989) 1 SCC 392 : (1988) 3 SCR 893 Supp : (1989) 1 UJ 42 , the Hon''ble Supreme Court observed:

".... Though teaching is the last choice in the job market, the role of teacher is central to all processes of formal education. The teacher alone could bring out the skills and intellectual capabilities of students. He is the "engine" of the education system. He is a principal instrument in awakening the child to cultural values. He needs to be endowed and energised with needed potential to deliver enlightened service expected of him. His quality should be such as would inspire and motivate into action the benefitter (sic benefactor). He must keep himself abreast of ever-changing conditions. He is not to perform in a wooden and unimaginative way. He must eliminate fissiparous tendencies and attitudes and infuse nobler and national ideas in younger minds. His involvement in national integration is more important, indeed indispensable. It is, therefore, needless to state that teachers should be subjected to rigorous training with tight 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. The Government and the University must, therefore, take care to see that inadequacy in the training of teachers is not compounded by any extraneous consideration."

In the matter of State of Maharashtra Vs. Vikas Sahebrao Roundale and others, AIR 1992 SC 1926 : (1992) 5 JT 175 : (1992) 2 SCALE 163 : (1992) 4 SCC 435 : (1992) 3 SCR 792 : (1992) 2 UJ 680 , the Hon''ble Supreme Court observed: "The teacher plays pivotal role in moulding the career, character fibres and aptitude for educational excellence in impressive young children. The formal educational needs proper equipment by the teachers to meet the challenges of the day to impart lessons with latest techniques to the students on secular, scientific and rational outlook. A well-equipped teacher could bring the needed skills and intellectual capabilities of the students in their pursuits. The teacher is adorned as gurudevobhava, next after parents, as he is a principal instrument to awakening the child to the cultural ethos, intellectual excellence and discipline. The teachers, therefore, must keep abreast of ever-changing techniques, the needs of the society and to cope with the psychological approach to the aptitudes of the children to perform that pivotal role. In short teachers need to be endowed and energised with needed potential to serve the needs of the society. The qualitative training in the training colleges or schools would inspire and motivate them into action to the benefit of the students. For equipping such trainee students in a school or a college all facilities and equipments are absolutely necessary and institutions bereft thereof have no place to exist nor entitled to recognition. In that behalf compliance with the statutory requirement is insisted upon. Slackening the standard and judicial fiat to control the mode of education and examining system are detrimental to the efficient management of the education."

In the matter of L. Muthukumar and Another Vs. The State of Tamil Nadu and Others, AIR 2000 SC 3084 : (2000) 1 JT 85 Supp : (2000) 6 SCALE 536 : (2000) 7 SCC 618 : (2000) 3 SCR 462 Supp : (2000) AIRSCW 3522 : (2000) 6 Supreme 407 , while relying upon earlier decisions noticed above, the Hon''ble Supreme Court opined that before teachers are allowed to teach innocent children, they must receive appropriate and adequate training in a recognized training institutes satisfying the prescribed norms, otherwise the standard of education and careers of children will be jeopardized. The court observed that allowing ill-trained teachers coming out of de-recognized or un-recognized institutes or licensing them to teach children of an impressionable age, contrary to the norms prescribed will be detrimental to the interest of the nation itself in the sense that in the process of building a great nation, teachers and educational institutions also play a vital role.

In Uma Devi''s case (supra) heavily relied upon by the learned Additional Advocate General appearing on behalf of the State the Hon''ble Supreme Court observed:

"2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated as equals. Thus, any public employment has to be in terms of the constitutional scheme.

A sovereign Government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted, the National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in a year, on paying wages as fixed under that Act. But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule."

(Emphasis added)

It is true that the Hon''ble Supreme Court has observed that a sovereign Government is not precluded from making temporarily appointments or engaging workers on daily wages basis, taking into consideration the economic situation in the country and work to be got done. But then, the Scheme as framed by the State Government is not an employment Scheme as such but rather it is a Scheme framed bypassing the regular recruitment process, which as observed by the Hon''ble Supreme Court in Uma Devi''s case (supra) must be a rule. In any case, the sovereign Government has to function within the constitutional limit and cannot be permitted to frame the Scheme in violation of the laws and the constitutional scheme governing the public employment."

After considering the entire law on the subject, learned Single Judge held as under:-

"40. In view of the discussion above, this Court is firmly of the opinion that the Scheme introduced by the State Government providing for the engagement of even unqualified/untrained persons as Vidhyarthi Mitra for their posting against the posts of Teacher Gr. III, Senior Teacher and School Lecturer dehors the relevant recruitment Rules and the eligibility criteria laid down by the NCTE exercising the power under the relevant statute, the provisions of the Act of 2009, and against the constitutional scheme of public employment, cannot but deemed to be illegal, arbitrary and falls foul of Article 14, 21 & 21A of the Constitution of India."

Learned Single Judge was conscious of the fact that vacancies of the teachers engaged for elementary education and secondary education cannot be filled immediately and, thus, keeping in view the interest of the students, an arrangement was made in paragraph-42 which reads as follows:-

"42. In the result, the writ petition No. 8154/10 is allowed. The writ petitions preferred by the petitioners assailing their termination from service, claiming continuance/re-employment as Vidhyarthi Mitra and against the insistence of the Government for execution of the fresh contract, are dismissed. The Vidhyarthi Mitra Scheme introduced by the State Government for engagement of ''Vidhyarthi Mitra'' on contractual basis on fixed honorarium against the posts of Teachers Gr. III, Senior Teachers and School Lecturers is declared illegal and unconstitutional. The respondents are restrained from engaging the Vidhyarthi Mitra under the Vidhyarthi Mitra Scheme against the posts of Teachers Gr. III, Senior Teachers and School Lecturers. The respondents are directed to proceed with the recruitment process to fill in all the vacant posts of Teachers and School Lecturers in various services/cadres forthwith and complete the process as early as possible, in any case, within a period of six months from the date of receipt of certified copy of this order. It is made clear that pending completion of the regular recruitment process, the State shall not be precluded from engaging the eligible persons on the various posts of Teachers on urgent temporary basis in accordance with the relevant recruitment Rules. The State shall also ensure that henceforth the determination of the vacancies of Teachers in various services/cadres is made every year as mandated by the relevant recruitment Rules and all efforts shall be made to fill up the vacancies preferably before the next academic session starts in the schools run by the State. The petitioners who have not been paid honorarium for the period they had worked with the respondents as Vidhyarthi Mitra, shall be paid the amount due within a period of two months from the date of receipt of certified copy of this order. It is made clear that on account of the Vidhyarthi Mitra Scheme being declared illegal and unconstitutional, the petitioners and their likes who had worked with the respondents as Vidhyarthi Mitra, shall not be deprived of the benefits already accrued to them. No order as to costs."

The Division Bench of this Court in the case of Hitesh Kumar (supra), even declined to accede to the prayer of the petitioner to allow at least the trained Vidhyarthi Mitras to continue until all the posts are filled up. In the opinion of the Division Bench, quality of education to be imparted to the children in school, cannot be compromised at any costs. The Court is not empowered to compromise with the legislative changes for the sake of equity for the contractual appointees, and empathy for the children to allow the ad-hoc arrangements to continue.

Thus, from a glance of the reasons in the case of Hitesh Kumar (supra), as extracted hereinabove, it is evident that Vidhyarthi Mitra Scheme itself was held to be unconstitutional and consequently abolished. No benefit can be drawn from the Scheme by the petitioner so as to claim relaxation in the upper age limit, contrary to the statutory prescription under the Rules of 2013. Furthermore, relaxation in age, is not a matter of right.

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

Ordered accordingly.

No costs.