Vivek Singh and Another vs State of U.P. and Others

A.P. Sahi, J.—The petitioners are assailing the additional qualification of Intermediate with Sanskrit from the U.P. Board or an equivalent examination of Sanskrit as provided for the post of Assistant Teacher in Hindi in Government Schools governed by the provisions of the U.P. Subordinate Educational (Trained Graduates Grade) Service Rules, 1983. The submission of Sri Khare was noted in the order dated 6.2.2013 when the petition was entertained as quoted herein under.

The contention raised by Sri Ashok Khare learned senior counsel is that the petitioners have applied for being appointed against the post of Assistant Teacher in T.G.T. grade for Hindi subject and that they possess graduation degree with Hindi and Sanskrit as one of the subject. The petitioners candidature is not being considered or not likely to be considered on account of the qualification prescribed for the said purpose inasmuch as the requirement is that the candidates have to possess a bachelor''s degree with Hindi and Intermediate with Sanskrit from the U.P. Board or an equivalent examination with Sanskrit.

Sri Khare contends that the petitioners firstly are in possession of higher qualifications as they are graduates in Hindi and Sanskrit. He secondly submits that the same category of education is being imparted in privately managed institutions under the U.P. Intermediate Education Act, 1921. The qualification prescribed under Appendix ''A'' for appointment against such category of post does not have any such requirement.

The submission of Sri Khare is that their qualifications are graduation with Hindi and Sanskrit as one of the subject. He contends that there is an anomaly in the matter of qualification for the same teachers imparting education in different category for the same course. He contends that the course of Hindi and Sanskrit at that level either in a Government school or a privately managed school is one and the same and in such circumstances if the higher qualification of graduation has been accepted in private schools then in the instant case the insistence of possession of a lesser qualification is arbitrary and violates Article 14 of the Constitution.

Accordingly Sri Khare has even made a prayer questioning the correctness of the rules and challenged the vires thereof on the basis of the aforesaid submissions. He prays time to assists the Court with authorities.

Put up on Friday next.

Sri Khare has further advanced his submission by relying on four judgments to urge that the possession of a higher qualification of the same line does not disqualify the petitioners even if they do not possess the lesser qualification at the Intermediate level. The judgments relied upon are (i) Mohd. Riazul Usman Gani and Others Vs. District and Sessions Judge, Nagpur and Others, , (ii) State of Haryana and Another Vs. Abdul Gaffar Khan and Another, , (iii) Chandrakala Trivedi Vs. State of Rajasthan and Others, and (iv) 2011 (1) ESC 115: (2010 Lab IC 2725) (FB), Manjit Singh v. State of Punjab.

I have also heard Sri Tomar learned standing counsel who has relied on the decision in the case of Chet Ram Gangwar v. State of U.P., reported in 2009 (4) ESC 2569: (2009 Lab IC 3699) to contend that the requisite qualifications are required to be possessed and the same cannot be eliminated on the basis of arguments advanced.

Having heard learned counsel for the parties the first argument of Sri Khare that the rule is ultra vires cannot be accepted. The rule making authority has the competence to make the rule and the same has been standing for long. Apart from this it does not offend any of the fundamental right guaranteed under the Constitution.

The contention of Sri Khare that there is no justification to have a different qualification in Government schools as against that of privately managed schools also cannot be accepted as they belong to different sources of establishment. It is open to the State Govt. to frame a separate rule for these two classes of institutions unless it can be shown that it results in discrimination. The petitioners if find the rule to be harsh they can apply for appointment in a privately managed institution, the selections whereof are conducted by a different body altogether governed by the provisions of U.P. Secondary Education Service Selection Board Act, 1982 and the Rules and Regulations framed thereunder.

In addition to this, the qualification of Intermediate with Sanskrit or equivalent examination is an additional qualification which the employer has a right to provide for. Merely because only higher qualifications have been prescribed for privately managed institutions, the same cannot be termed to be discriminatory or violation of Article 14 of the Constitution of India. The mode of recruitment in both the said institutions is different and their promotional avenues are also different. Their separate existence as a class of teachers with separate modes of recruitment remains undisputed.

The contention of Sri Khare that since the Government Intermediate College and privately managed teach the same subject and same course therefore a teacher employed in either of the institutions cannot have different qualifications have to be rejected, inasmuch as, pointed out they are a different class and governed by different set of rules.

Sri Khare has then vehemently urged on the basis of the decisions referred to herein above to contend that the petitioner has a higher qualification in the same line of the subject concerned. He contends that as against these judgments, some other decisions of the Apex Court provide a distinction between where the academic qualifications and the training qualifications that have been separately dealt with which do not apply in the present case.

I have perused the judgments noted above and in my opinion none of them come to the aid of the petitioners. The reason given in paras 7, 8 and 9 in the case of Chandrakala (2010 Lab IC 2725) (supra) is that the word ''equivalent'' shall be given a reasonable meaning which means that there is some degree of flexibility or adjustment which does not lower the stated requirement. In my opinion providing for an additional lower qualification specifying the subject is an additional qualification and the ratio of the interpretation of the word ''equivalent'' in the judgment referred to hereinabove is no where attracted in the present case. Apart from this para 9 of the said judgment categorically records that it was a judgment under Article 142 of the Constitution of India on specific facts of that case. Accordingly it does not support the submission of Sri Khare.

Coming to the decision in State of Haryana v. Abdul Gaffar Khan (supra) the same indicates that the consideration of higher qualification is not expressly excluded. The ratio of the decision again is not attracted, inasmuch as in the instant case what the petitioner in essence desires is that the additional lesser qualifications of Intermediate with Sanskrit should be ignored as against the higher qualification of B.A. with Hindi and Sanskrit. In effect the submission is that even if a candidate did not have Hindi and Sanskrit at the Intermediate level, yet if he possesses graduation with the said subjects the qualification should be deemed to be possessed by the candidate. This ground of equivalence or possession of a higher qualification cannot be inferred by any fiction. The absence of the qualification required at the lesser does not fall within the wisdom of this Court to eliminate or discard an eligibility which is specifically provided for. The judgment in the case of State of Haryana does not rule to that effect.

Coming to the fourth decision in the case of Full Bench judgment of the Punjab High Court the court therein was concerned with the possession of a higher qualification in the same line and held that it cannot be excluded from consideration from selection. In none of these cases the present situation exists where the higher qualification and the lesser qualification have been provided for specifically in the same line. It was the wisdom of the rule making authority to clearly provide that in addition to the graduate level degree, the candidate has to possess the knowledge of the Intermediate level of the subject as well. In such circumstances none of the judgments as referred to above by Sri Khare come to the aid of his alternative arguments in relation to possessing a higher qualification.

For the reasons aforesaid the contention raised by the learned counsel for the petitioners cannot be accepted. The writ petition is accordingly dismissed.