Shweta Khokhar and Another Vs State of U.P. and 2 Others

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Neutral Citation No. - 2023:AHC:145388

In Chamber.

Case :- WRIT - A No. - 3253 of 2019 Petitioner :- Shweta Khokhar And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sunil Kumar Srivastava,Sr. Advocate Counsel for Respondent :- C.S.C.,Yogendra Singh Bohra

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Hon'ble Ashutosh Srivastava,J.

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1. Heard Shri Sunil Kumar Srivastava, learned counsel for the petitioner, learned Standing Counsel for the State-respondent and learned counsel for respondent Nos. 2 and 3.

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2. This writ petition has been filed with the following reliefs:-

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“i) issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 14.6.2018 and 14.6.2018 passed by District Basic Education Officer, Aligarh.

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ii) issue a writ, order or direction in the nature of mandamus commanding the respondents to forthwith grant appointment to the petitioners as Assistant Teacher on the basis of counselling already held.

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iii) issue a writ, order or direction in the nature of mandamus commanding the respondents to forthwith permit the petitioners to function as Assistant Teacher and to pay their salary regularly every month.”

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3. Learned counsel for the petitioners submits that State Government issued Government Order on 15.12.2016 for selection/appointment of 12460 Assistant Teachers in Junior Basic Schools run by Basic Education Board. In pursuance of aforesaid government order, the District Basic Education Officer, Aligarh issued an advertisement and invited online applications from the eligible candidates. Thereafter, the Secretary, Basic Shiksha Parishad, U.P. Allahabad, issued a circular on 26.12.2016 laying down the guideline for filling up the 12460 vacancies of Assistant Teacher. Learned counsel for the petitioners submits that the petitioners have completed their bachelor degree as also completed their training qualification i.e. Diploma in

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Education (D. Ed.). The petitioner no.1 has completed her training qualification from M.P., Bhopal and the petitioner no.2 has completed his Diploma in Education (D. Ed.) course from Haryana in the year 2011 and 2015, respectively. The petitioner no. 1 belongs to Other Backward Class category and petitioner no.2 belongs to S.C. Category. The petitioners applied online for the post of assistant teachers for class I to V. Thereafter, the District Basic Education Officer, Aligarh issued notice on 15.3.2017 for first round of the counseling in which, the other candidates participated, but respondent no. 3 did not permit the petitioners, though they have not passed any order in writing but orally informed that since the petitioners' training qualification i.e. D. Ed is not mentioned in the advertisement, they are not eligible for the counseling.

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4. Learned counsel for the petitioners submit that petitioners thereafter supplied copy of order dated 06.01.2017 passed by this Court in Writ-A No. 263 of 2017 (Ajay Kumar and 2 others. Vs. State of U.P. and 2 others) in which, in similar circumstances this Court has directed the respondent no. 1 to accept the application forms. Thereafter, the respondent no. 3 has provisionally permitted the petitioners to participate in the counseling, where all the testimonials of the petitioners have been verified and retained by them. Learned counsel for the petitioners submit that after holding the counseling the State Government took a decision to postpone the selection process. The respondent no. 2 also issued a letter on 23.3.2017 by which the selection process has been postponed. After some times, respondent no.2 vide letter dated 16.4.2018 directed the District Basic Education Officers to complete selection process in pursuance to the Government Order dated 11.4.2018. In pursuance thereof, the District Basic Education Officer, Aligarh issued notice which was published in news paper on 19.4.2018 directing all the candidates to appear before him on 23.4.2018 who were earlier participated in the counseling held on 18.3.2017.

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5. Learned counsel for the petitioners submit that since the petitioners had earlier participated in the counseling they appeared and put their signatures on the counseling register. Learned counsel for the petitioners submit that after counseling held on 23.4.2018, the District Basic Education Officer, Aligarh issued cut of marks of the selected candidates on 27.4.2018. Under the cut of marks last selected candidate of Other Backward Class category is 68.43 whereas the marks obtained by the petitioner no. 1 came to 69.32 and the marks of petitioner no. 2 came to 66.68.

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6. Learned counsel for the petitioners submit that on 01.05.2018, the impugned list has been issued by District Basic Education Officer, Aligarh rejecting the claim of the petitioners on the ground that petitioners hold their Diploma in Education not Diploma in Education (Special Education). It is contended that the aforesaid impugned list has been issued by the District Basic Education Officer without considering the judgment passed in Special Appeal No. 130 (D) of 2014 and 131 of 2014 (Harsh Kumar and others Vs. State of U.P. and others). Learned counsel for the petitioners submits that petitioners have already brought on record the copy of mark sheet and certificate of training qualification and NCTE recognition order of the institution from where petitioner obtained such degrees. A perusal of the aforesaid list demonstrates that the institution from which the petitioners have passed the said course are duly recognized by NCTE. Thus the action of the respondents insofar as to exclude the Diploma Education programme from zone of eligibility is not proper.

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7. Learned counsel for the petitioners submits that petitioner no. 1 has filed representation before the District Basic Education Officer, Aligarh on 1.5.2018 for considering his claim in pursuance of the order passed by this Hon'ble Court on 12.12.2017 in Writ-A No.47490 of 2017 (Kumari Pallavi Vs. State of UP and others). It is next submitted that on account of inaction of the respondents in not considering the claim of the petitioners, the

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petitioner No. 1 filed writ petition before this Court, being Writ Petition No.11549 of 2018 (Shweta Khokhar and others Vs. State of U.P. and others) and the petitioner no 2 also filed Writ Petition No. 12324 of 2018 (Malti Singh Vs. State of U.P. and others). Both were disposed of on 10.5.2018 and 22.5.2018, respectively. In pursuance thereof petitioner nos.1 and 2 again filed representation on 14.5.2018 and 26.5.2018, respectively before District Basic Education Officer, Aligarh. When nothing has been done, petitioners moved contempt application before this Court, which was disposed of on 13.11.2018 and during the pendency of the contempt application, the respondent No. 3 has rejected the representations of the petitioner on 14.6.2018 which order has been impugned here in this writ petition.

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8. Learned counsel for the petitioners submit that order impugned proceeds to discard the aforesaid judgment merely upon the recital of the aforesaid judgment pertaining to Diploma in Education (Special Education) course and not to Diploma in Education Course. It is contended that the distinction so drawn is wholly perverse and meaningless for which there can be no justification. Learned counsel for the petitioners submits that the recital in the order impugned that there is no instructions for counseling of Diploma in Education is wholly perverse. Said specification covered by the specification consideration of two years Diploma in Education by whatever name known. Diploma in Education course possessed by the petitioners stand covered by requirement of "Two Years of Diploma in Education". It is accordingly prayed that the rejection of their claim being without any basis is liable to be set aside an the writ petition is liable to be allowed.

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9. The submissions made by learned counsel for the petitioners have been controverted by learned counsel for the respondent Nos. 2 and 3 on the strength of the stand taken in the counter affidavit. He submits that the Secretary, U.P. Basic Education Board, Prayagraj issued directions

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on 26.12.2016 for recruitment of 12460 posts of assistant teachers in which a clear direction was issued regarding the educational eligibility for the post. Learned counsel for the respondents submits that in the advertisement it is specifically mentioned that a candidate must have passed graduation from the university established by law in India and two years BTC training course, two years Urdu efficiency BTC training course. Special BTC training course conducted by the State Council of Education (SCERT) and Training or D. Ed. (Special Education)/four years B.L. Ed. training course recognized by National Council of Education Training (NCTE). In the present case, the petitioners passed only D. Ed. Course whereas the eligibility qualification according to the advertisement was D. Ed. (Special Education).

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10. Learned counsel for the respondents submits that the Secretary, Basic Education Board issued letter dated 16.04.2018 again mentioning the requisite eligibility for the post of assistant teacher in which D.Ed. (Special Education) was recognized. Learned counsel for the respondents submits that in the cases cited by the petitioners i.e. Special Appeal Nos. 130 of 2014 and 131 of 2014, (Harsh Kumar and another v. State of UP and others), the dispute was with regard to Diploma in Education (Special Education) (D. Ed.) which is clearly distinguishable.

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11. Learned counsel for the petitioner, in reply to the counter affidavit has filed rejoinder affidavit. He submits that U.P. Basic Education Board issued direction on 26.12.2016 for recruitment of 12460 posts of Assistant Teachers and in pursuance to this the petitioners applied through online application in District Aligarh, the eligibility qualification is given in the aforesaid advertisement but some litigation has been filed before this Hon'ble Court and direction was issued to include Diploma in Education (D. Ed.) qualification which is prescribed by the NCTE. NCTE also clarified that two year diploma course recognized by the NCTE by whatever name known satisfied the eligibility criteria. In pursuance to this the petitioners possess

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the requisite qualification. Petitioners have completed two years course of Diploma in Education (D. Ed.).

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12. I have heard learned counsel for the parties and have perused the record.

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13. In the advertisement dated 26.12.2016, the eligibility criteria for filling up the 12480 posts of Assistant Teacher was mentioned, which is as under:-

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“'kSf{kd vgZrk& izkFkfed fo|ky;ksa esa lgk;d v/;kid in ij fu;qfDr gsrq ,sls vH;kFkhZ ik= gksaxs tks 'kklukns'k fuxZr gksus dh frfFk fnukad 15-12-2016 rd Hkkjr esa fof/k }kjk LFkkfir fo'ofo|ky; ls Lukrd dh mikf/k j[krs gks ,oa jkT; 'kSf{kd vuqla/kku ,oa izf'k{k.k ifj"kn mRrj izns'k }kjk vk;ksftr f}o"khZ; mnwZ izoh.krk ch0Vh0lh0 izf'k{k.k] fof'k"V ch0Vh0lh0 izf'k{k.k vFkok ,u0lh0Vh0bZ0 }kjk vuqeU;rk izkIr Mh0,M0 (fo'ks"k f'k{kk) @pkj o"khZ; ch0,y0,M0 izf'k{k.k lQyrkiwoZd mRrh.kZ fd;s gksaA lkFk gh mRrj izns'k ljdkj vFkok Hkkjr ljdkj }kjk d{kk 1&5 gsrq vk;ksftr v/;kid ik=rk ijh{kk lQyrkiwoZd mrh.kZ fd;s gksaA”

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14. From the advertisement date 26.12.2016 issued to fill up the posts of Assistant Teachers it is clearly borne out that D. Ed. (Special Education) has been prescribed as eligibility condition. The petitioners possess D. Ed. qualification. The question for consideration of the Court is whether D. Ed. qualification of the petitioners meets the eligibility criteria of D. Ed. (Special Education) prescribed by the advertisement and whether the respondents were justified to treat the petitioners as not possessing the requisite eligibility qualification.

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15. Upon the enactment of the NCTE (Amendment) Act, 2011 which come into force on 01.06.2012, the minimum educational qualifications prescribed for the recruitment of Assistant Teachers in Primary Schools have been notified under notification dated 29.07.2011 is as follows.

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“ (I) Classes I-V

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(a) Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in elementary Education (by whatever name known)

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OR

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Senior Secondary (or its equivalent) with at least 45% marks and 2-year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure) Regulations, 2022

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OR

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Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor of Elementary Education (B.El.ED.)

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OR

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Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Education (Special Education)

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OR

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Graduate and two year Diploma in Elementary Education (by whatever name known)

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AND

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(b) pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose.”

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16. There is no dispute that the eligibility qualifications as laid down by the NCTE shall be binding and persons who hold a qualification which is recognized by the NCTE cannot be excluded from consideration in view of the law laid down by the Full Bench of this Court in Shiv Kumar Sharma Vs. State of U.P. & others reported in 2013(6) ADJ 310 (FB).

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17. The NCTE notification dated 29.07.2011 prescribes Diploma in elementary education (by whatever name known) as the minimum eligibility qualification for appointment as Assistant Teachers.

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18. In the opinion of the Court, the petitioners possessed of D.Ed. qualification meet the eligibility qualification as prescribed by the advertisement dated 26.12.2016 and their candidature for appointment as Assistant Teachers could not have been rejected on the score that the petitioners do not satisfy the eligibility criteria.

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19. In view of the above, the impugned orders dated 14.06.2018 passed by the District Basic Education Officer, Aligarh, whereby rejecting the claim

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of each of the petitioners is set aside. The writ petition is allowed . The respondents are directed to grant appointment to the petitioners as Assistant Teachers on the basis of their participation in the counseling already held.

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20. No order as to costs.

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Order Date : 21.7.2023 Ravi Prakash

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Digitally signed by :- RAVI PRAKASH High Court of Judicature at Allahabad

Shweta Khokhar and Another v. State of U.P. and 2 Others

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Shweta Khokhar and Another v. State of U.P. and 2 Others

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