Divya Bhaskar and Anr. v. Govt. of NCT of Delhi and Anr.

3. Scale of pay: Rs.1200-2400 (Pre-revised) Rs.4,500-7,000 (Revised as per V C.P.C.)

4. Whether selection post or: Non-selection post. non-selection post

5. Age limit for direct recruitment: Below 30 years. (Relaxation in case of Govt. servants of Delhi Admn. below 40 years in case of Female candidates)

6. Educational Qualifications: Essentials:

1. Hr. Secondary or Sr. Sec./Intermediate

2. Should have studied Sc. & Maths upto Matric/10th std. (Qualification shown at Sr. No. 2 is relaxable for the candidate passed Hr. Sec. Examination.)

3. JBT/BTC. (Relaxable on the recommendation of the selection committee, in case the candidate possesses higher teachers training qualification)

X. Desirable

1. B.A. with English”

14. From a plain reading of the RRs, it is evident that post of Assistant Teacher is a non-selection post and the essential educational qualifications do not include B.Ed. degree. It needs no reiteration that an advertisement has to be in consonance with the RRs of the post in question and therefore the initial advertisement prescribing B.Ed. degree as an essential educational qualification was clearly against the RRs. The School was thus right and justified in rectifying the error and issuing a corrigendum deleting the requirement of possessing a B.Ed. degree and consequently not considering candidates who were Graduates with only B.Ed. degree.

15. Be it noted that while in the impugned order there is no specific mention of what instructions issued by DoE were violated by the School by issuing the corrigendum, it is stated in the affidavit filed by DoE that as per provisions of the RRs candidates having Diploma of JBT/DIET as well as those having degree of B.A./B.Sc. with B.Ed. are eligible for appointment as Assistant Teacher and that two different marking schemes i.e. one for candidates with diploma and other for candidates with degree in B.A./B.Sc. and B.Ed. were circulated by DoE for recruitment of Assistant Teacher in aided schools on 26.02.2014 and thus candidates with graduation degree with B.Ed. could not be ousted. Albeit subtly, it is also pleaded that the expression ‘Higher Teachers Training Qualification’ appearing in the RRs would include B.Ed.

16. Insofar as the marking schemes circulated by DoE are concerned, the same cannot be relied on as they run contrary to the RRs in question, wherein essential educational qualifications do not include B.Ed. There is no gainsaying that no Executive Instructions or Circular can override the statutory Recruitment Rules. [Ref.: K. Kuppusamy and Another v. State of T.N. and Others, (1998) 8 SCC 469 and Bank of Baroda and Another v. G. Palani and Others, (2022) 5 SCC 612].

17. As far as the argument that B.Ed degree is a higher qualification and thus included in the educational qualifications prescribed in the RRs is concerned, in Yogesh Kumar (supra), the Supreme Court held that looking to the different nature of TTC qualification, High Court rightly held that it is not comparable with the B.Ed. degree qualification and the latter cannot be treated as higher qualification to the former. Relevant paragraph from the judgment is as follows:-

teachers can also earn promotion to the post of teachers to teach higher classes and for which BEd is the prescribed qualification, it cannot be held that BEd is a higher qualification than TTC. Looking to the different nature of TTC qualification, the High Court rightly held that it is not comparable with BEd degree qualification and the latter cannot be treated as higher qualification to the former.”

18. A Co-ordinate Bench of this Court, relying on Yogesh Kumar (supra) and Ataul Haque (supra), in the case of Sanjeev Kumar (supra) held as follows: “17. In Haq case, 2001 (3) AD (Del) 159 the Division Bench, after noting the curriculum and other aspects, said that: It will thus be seen that whereas the ETE/JBT curriculum is framed in such a way that one single teacher is able to teach all the subjects to a particular class or students, in B.Ed. curriculum the emphasis is on the specialization in two subjects. The ETE/JBT courses are designed specially keeping the children of class I to V in mind which is not the case with B.Ed. curriculum. A primary teacher has to undergo teacher training in primary classes that is class I to V whereas a B.Ed. degree holder is required to have teaching experience of secondary classes i.e. from VI to X. In the curriculum framework for quality teacher education framed by National Counsel for Teachers Education, an autonomous body, it has been clearly mentioned in Clause 2.[7] that the curriculum for primary teacher has been formulated specially to enable the teachers to teach primary classes i.e. from I to V whereas in Clause 2.[9] which deals with teacher's education for secondary stage it has been observed that for teaching at the secondary level educational qualification which is most sought after is B.Ed. which in fact is meant for this stage alone. The subject-content as well as teaching methodology is different for ETE diploma holder and B.Ed. degree holder. The teaching practice for primary teachers and secondary teachers is also of different duration and different levels. The two qualifications operate in different fields and at different levels. It will, therefore, be wrong to say that B.Ed. is a higher qualifications then ETE/JBT in the same sense as B.A. is higher than intermediate. B.A. degree is considered to be higher than intermediate because for passing B.A. one has necessarily to pass intermediate but in order to obtain B.Ed. it is not necessary to pass ETE/JBT first. These two qualifications are specifically meant for different levels of students and there is no question of one being higher than the other.

18. The Court had also noticed that the (NCTE) and State Council of Educational Research and Training (SCERT) both had taken a stand that B.Ed. candidates are not suitable for teaching primary classes for whom ETE/JBT courses are specifically designed.

19. In the Yogesh case (supra), the Supreme Court endorsed the view of the Division Bench, in the following terms: “The Division Bench of the Delhi High Court in the impugned judgment has dealt with the above two arguments in great detail. In our considered opinion it has rightly come to the conclusion that B.Ed. qualification, although a well recognised qualification in the field of teaching and education-being not prescribed in the advertisement, only some of the B.Ed. candidates who took a chance to apply for the post cannot be given entry in the field of selection. We also find that the High Court rightly came to the conclusion that teacher training imparted to teachers for B.Ed. course equips them for teaching higher classes. A specialized training given to teachers for teaching small children at primary level cannot be compared with training given for awarding B.Ed. degree. Merely because primary teachers can also earn promotion to the post of teachers to teach higher classes and for which B.Ed. is the prescribed qualification, it cannot be held that B.Ed. is a higher qualification than TTC. Looking to the different nature of TTC qualifications the High Court rightly held that it is not comparable with B.Ed. degree qualification and matter cannot be treated as higher qualification to the former.”

20. The discussion in the preceding paragraphs would show that the issue is no longer open; it stands concluded by the ruling of the Division Bench, and the Supreme Court. The essential qualification, for the purpose of recruitment to the post of a primary/Assistant Teacher (Primary) is inter alia two years teacher's training certificate. Hence, other qualifications, such as B.Ed. or one year's diploma/certificate are not recognized qualifications. In my considered view, the position would not alter, even if the advertisement includes B.Ed./one year's teachers' training certificate, in view of the findings of the Division Bench, and more importantly, the 2001 Regulations, which are discussed below: xxx xxx xxx

24. The effect of the 1993 Act, and regulations in the context of a similar contention for enforcement of recruitment conditions in rules the contained contrary stipulations, were considered by the Supreme Court, in a recent judgment reported as Rajesh Kumar Gupta v. State of U.P., (2005) 5 SCC 172: AIR 2005 SC 2540: (2005 Lab IC 2087): [2005 (5) SLR 1 (SC)]. The Court held as follows: “Whether the selection of candidates for special BTC training is contrary to the provisions of the U.P. Basic Education Act, 1972 and U.P. Basic Education (Teachers) Services Rules, 1981.

19. Relying on the judgment of Union of India v. Shah Goverdhan L. Kabra Teachers College, (2002) 8 SCC 228: (AIR 2002 SC 3675), the High Court held that the National Council for Teacher Education constituted under Section 3 of the National Council for Teacher Education Act, 1993 is an expert body whose function is to maintain the standards of education in relation to teachers' education. It was for this body to prepare norms for recognised courses for teachers' education on different levels. The special BTC training course contemplated by the State of U.P. had not been recognised by the National Council for Teacher Education Act under the 1993 Act. It was, therefore, not a recognised teachers' training course. The State Government, therefore, could not have declared it or treated it as equivalent qualification for the purpose of assistant Masters or Assistant Mistresses. Merely because the State was under pressure and in a hurry to recruit a large number of teachers, the requirement of educational standards of the training imparted to the teachers could not be compromised. Strangely, despite recognition of E.Ed/L.T. and other courses recognised by the National Council for Teachers Education Act under the 1993 Act, the State Government had not bothered to declare the equivalence for the purpose of making appointment on posts of Assistant Masters and Assistant Mistress for the schools ran by the Board. The High Court, therefore, pointed out that the Government Order recognizing special BTC course as equivalent qualification was contrary to the provisions of the UP Basic Education Act and provisions of the National Council for Teacher Education Act, 1993, personal Council for Teacher Education Act, 1993 which gives overriding effect to the provisions of the State Act.

20. The U.P. Basic Education (Teachers) Service Rules, 1981 provides under Section 5 for direct requirement to the posts of Assistant Masters and Assistant Mistresses to Junior Basic Schools. The Rules prescribe the qualifications requisite for such posts. Academic qualification required is a bachelor's degree from a University established by law in India or a degree recognised by the Government together with ‘training qualification’ consisting of a Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of teaching or any other training course rcognised by the Government as equivalent thereto. In the face of these Rules, and particularly keeping in view the provisions of the National Council for Teacher Education Act 1993, no fault can be found with the impugned judgment of the High Court that the special BTC training course formulated by the State Government was contrary to the provision of the impugned Act and Rules and the 1993 Central Act.” xxx xxx xxx

27. The issue here is the extent to which the Court can intervene, in exercise of judicial review. This perspective, and the limits to which the Courts can delve, or probe into the recruitment process, particularly in the absence of allegations of mala fides, or demonstrable arbitrariness, have to be seen in the light of the settled law that the Court would not substitute its opinion to that of an expert, specially in academic matters. This was discussed in Haq case2001 (3) AD 159 (Del) itself, where the Court held, inter alia, that: In the case of University of Mysore, H.H. Anniah Gowda v. C.D. Govinda Rao, AIR 1965 SC 491, University had appointed a board of appointments to select candidates to the post of Reader. The recommendations made by the Board were accepted by the University and the appointments were accordingly made. These appointments were challenged before the Court under Article 226 of the Constitution of India on the ground that candidates did not possess the requisite qualification. Hon'ble Supreme Court held that Court should not interfere in such matters if mere is no allegation of mala fides against persons who constituted the Board. Hon'ble Supreme Court further observed that it will be wiser and safer for the Courts to leave the decision to the experts who are more familiar with the problems they face than the Court generally can be. In the case of M.P. Oil Extraction v. State of Madhya Pradesh, (1997) 7 SCC 592: AIR 1998 SC 145, it was observed that the executive authority of the State must be held to be within its competence to frame a police for the administration of the State. Court cannot and should not out step its limit, unless policy framed is absolutely capricious not being informed by any reason whatsoever or offends any constitutional provisions.”

19. I may also allude to a recent decision of the Supreme Court in Navin Kumar (supra), wherein it is held as under:

xxxx xxxx

4. The High Court in its judgment dated 02.04.2024 declared all such candidates, having B.Ed. qualification to be ineligible and disqualified for selection to the post of primary school teachers, following the decision of this Court in Devesh Sharma (supra). xxxx xxxx xxxx

10. One of the arguments of the learned senior counsel (Mr. Shrivastava) for the petitioners before this Court is that this Court in Devesh Sharma (supra) had opened a small window for B.Ed. candidates who were called for selection as B.Ed. was one of the qualifications in the 2019 Rules as also in the notification of NCTE and till it was set aside such candidates cannot be called as ineligible. All we had said in Devesh Sharma (supra) was that since the law, making B.Ed. as qualification, was not struck down by any Court (as was the position in Rajasthan when recruitment to the post of teachers were taking place in 2019) such candidates ought to have been called at least. This is exactly what was said: “Having made the above determination we, all the same, are also of the considered opinion that the State of Rajasthan was clearly in error in not calling for applications from B.Ed. qualified candidates, for the reasons that till that time when such an advertisement was issued by the Rajasthan Government, B.Ed. candidates were included as eligible candidates as per the statutory notification of NCTE, which was binding on the Rajasthan Government, till it was declared illegal or unconstitutional by the Court.” As we know when recruitment to the post of teachers was being made in Rajasthan, B.Ed. was a qualification for teachers as per the NCTE notification. The above observation made by us was only to affirm the findings of the Rajasthan High Court which had although held that B.Ed. was not a valid “qualification” for primary teachers, yet cautioned that the Government could not have ignored the notification of the NCTE till it was declared illegal by a Competent Court. That was all. In Chhattisgarh, this was not the case. B.Ed. qualified candidates were called by the State in the selection process, yet as they were held to be non-qualified by a judgment of this Court, which is the law now and by logic has to be implemented, they were rightly held to be disqualified. How does our observations in Devesh Sharma (supra) help the petitioners, we simply fail to understand. This argument is totally misconceived. B.Ed. is not a qualification for a teacher in a Primary School. Moreover, this aspect has already been clarified in the order dated 08.04.2024, where only such candidates have been saved who were selected and appointed prior to our order dated 11.08.2023 in Devesh Sharma (supra). Since the petitioners in the present case were appointed post 11.08.2023 and their appointments were also subjected to the final outcome of the pending writ petition before High Court, they cannot get any benefit. The completion of the selection process prior to 11.08.2023 is not material. What is important is the date of appointment which is certainly after the cut-off date. They will stand disqualified, as they do not have the essential qualification for appointment as primary school teachers.”

20. From a reading of the judgments aforementioned and the applicable RRs in the present case for appointment to the post of Assistant Teacher, it can be safely held that B.Ed. is neither an essential educational qualification nor Higher Teachers Training Qualification and as the corrigendum is in consonance with the RRs and the law on the subject, the impugned order questioning the validity of the corrigendum on the ground that B.Ed. was deleted from the essential educational qualifications cannot sustain in law.

21. Coming to the issue of prior approval by DoE of the corrigendum in question, in my considered view, this stand of DoE in the impugned order is also without any basis for multiple reasons. Firstly, as noted above, the corrigendum is in consonance with the applicable RRs. Therefore, no illegality can be found with the corrigendum. DoE asserts that before publishing the corrigendum, School ought to have taken prior approval. The stand of the School, per contra, is that the action was on the direction of the concerned officer. No doubt, it would have been an ideal situation for the School to have taken approval of DoE before publishing the corrigendum but this technical infirmity is not enough to quash the corrigendum as the same is in accordance with the applicable RRs. Secondly, Rule 98 of DSEAR provides that where DE nominee is present in the Selection Committee no approval is required. Thirdly and most importantly and as rightly flagged by the counsels for the Petitioners and the School, minutes of the meeting of the Selection Committee reflect that the corrigendum was brought to the notice of the members and being mindful of the same and after examining the corrigendum and the applicable RRs, the Selection Committee, comprising of the DE nominee, proceeded with the selection process and there is thus ratification of the corrigendum. All members have signed on the minutes and there is no dissent.

22. In view of the aforesaid, impugned order/letter dated 14.06.2017 is hereby quashed. Appointments of the Petitioners to the post of Assistant Teacher in the School is hereby declared as valid and it is directed that DoE shall release the grant-in-aid for payment of their salaries and other emoluments. Interim order dated 30.10.2017, whereunder Petitioners have continued to serve, is made absolute. Consequential benefits to which the Petitioners are entitled shall be released to them within three months from today.

23. Writ petition is allowed and disposed of in the aforesaid terms.

JYOTI SINGH, J OCTOBER 23, 2024