Dismissed

Bharat Khande v. State of Chhattisgarh

Chhattisgarh HC8 Aug 2023WPS/3518/2023

Case brief

AI extract

What is this about?

Challenge by aspiring teachers to notifications amending the Chhattisgarh School Education Service Recruitment and Promotion Rules, 2019 by removing the subject-wise requirement for direct recruitment as Teacher. The High Court held the amendment to be a policy decision within the State's domain, presumed constitutional, lowering no qualification, and dismissed the writ petitions.

What the court decided

AI extract

Bharat Khande Vs State of Chhattisgarh — Education and Admissions | Chhattisgarh HC (2023)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No. 5515 of 2023

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Tilesh Kumar Sahu S/o Banshidhar Sahu Aged About 23 Years R/o Village Gidhouri District Balodabajar Bhatapara (C.G.)

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---- Petitioner

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Versus

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State Of Chhattisgarh Through Secretary, Department Of School Education, Mahanadi Bhawan, Mantralaya Atal Nagar, New Raipur, District Raipur (C.G.)

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Director Directorate Of Chhattisgarh Public Instruction Indravati Bhawan, Naya Raipur, District Raipur, Chhattisgarh.

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---- Respondents

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(Cause Title taken from Case Information System)

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For Petitioner : Mr. Ajay Shrivastava, Advocate.

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For Respondents/State : Mr. H.S.Ahluwalia, Deputy Advocate General

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WPS No. 3179 of 2023

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Gayatri Verma W/o Ashok Verma Aged About 25 Years Resident Of Ramnagar, Kawardha, Present Resident of Village Neurgaon, Tahsil Kawardha, District Kabirdham Chhattisgarh.

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Yashwant Kumar Tandon S/o Shiv Prasad Tandon Aged About 30 Years Resident Of Dalabhauha, Tahsil Pandariya, District Kabirdham Chhattisgarh.

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Bhupendra Kumar Patel S/o Bharatlal Patel Aged About 33 Years Resident Of Village Balouda, Purani Basti, Ward No. 3, P.O. Hasua, Tahsil Kasdol, District Kabirdham Chhattisgarh.

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---- Petitioners

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Versus

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State Of Chhattisgarh Through Secretary, Department Of School Education Mahanadi Bhawan, Mantralaya Atal Nagar, New Raipur, District Raipur Chhattisgarh.

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Director, Directorate Of Chhattisgarh Public Instruction Indravati Bhawan,

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Naya Raipur, District Raipur Chhattisgarh.

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---- Respondents

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(Cause Title taken from Case Information System)

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For Petitioner : Mr. Ajay Shrivastava, Advocate. For Respondents/State : Mr. H.S.Ahluwalia, Deputy Advocate General For Intervenor : Mr. P. Acharya, Advocate.

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WPS No. 3518 of 2023

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Bharat Khande S/o Umend Khande Aged About 35 Years Resident Of Navapara (Bhondu), P.O. Baigakapa, Tahsil Lormi, District - Mungeli Chhattisgarh.

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Sangeeta Dadsena D/o Ghanshyam Dadsena Aged About 33 Years Resident Of Village Pathartal, P.O. Baigakapa, Tahsil Lalpur, District - Mungeli Chhattisgarh.

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---- Petitioners

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Versus

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State Of Chhattisgarh Through Secretary, Department Of School Education, Mahanadi Bhawan, Mantralaya Atal Nagar, New Raipur, District - Raipur Chhattisgarh

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Director, Directorate Of Chhattisgarh Public Instruction Indravati Bhawan, Naya Raipur, District Raipur, Chhattisgarh.

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---- Respondents

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(Cause Title taken from Case Information System)

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For Petitioner : Mr. Chandra Prakash Lahrey, Advocate. For Respondents/State : Mr. H.S.Ahluwalia, Deputy Advocate General

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WPS No. 5070 of 2023

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Giriraj Patel S/o. Krishna Kumar, Aged About 26 Years R/o. Village And Post Dhimani, Tehsil Kharsia, District - Raigarh, Chhattisgarh.

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Preeti Kaushik, S/o. Gangaram, Aged About 30 Years R/o. Village Nayapara Bodari Ward No. 04, Post Chakarbhata Tehsil - Bodari, District - Bilaspur, Chhattisgarh.

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Rupendra Jaiswal, Son Of Ramdayal Jaiswal, Aged About 35 Years Resident Of Jongra Tahsil - Sakti, District - Sakti Chhattisgarh.

---- Petitioners

Versus

State Of Chhattisgarh Through The Secretary, Department Of School Education, Mahanadi Bhawan, Mantralaya, Atal Nagar, Raipur, District - Raipur, Chhattisgarh.

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The Director Of School Education, Directorate Raipur District - Raipur, Chhattisgarh.

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Chhattisgarh Professional Examination Board, Through Its Controller, Vyapam Bhawan, Sector - 19, North Block, Atal Nagar, Nawa Raipur, District - Raipur, Chhattisgarh.

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---- Respondents

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(Cause Title taken from Case Information System)

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For Petitioner : Mr. Ravikar Patel, Advocate. For Respondents No. 1 : Mr. H.S.Ahluwalia, Deputy Advocate General and 2/State

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WPS No. 5162 of 2023

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Dilesh Kumar Gilhare S/o Dayaram Gilhare Aged About 33 Years R/o Ward No. 04, Kurrepara, Chhachhanpuri, District : Raipur, Chhattisgarh

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Pokhraj Dahariya S/o Shri Bhatar Ram Dahriya Aged About 33 Years R/o House No.12, Ward No.04, Teka, Deori, Rajim, District : Gariyabandh, Chhattisgarh

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Rani W/o Shri Pokhraj Dahariya Aged About 30 Years R/o Ward No.04, Satnamipara, Teka, District : Gariyabandh, Chhattisgarh

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Santosh Kumar Kashyap S/o Shri Bhola Ram Kashyap Aged About 34 Years R/o Ward No.01, Kuriyari, Godhna District Janjgir Champa New District Sakti (C.G.)

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Kamal Das C/o Shri Kala Das Aged About 25 Years R/o Ward No.08, Hedspali, District : Mahasamund, Chhattisgarh

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Vaijayanti Kumari D/o Shri Gopal Ram Aged About 24 Years R/o Ward No.02, Dargahan, District : Dhamtari, Chhattisgarh

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Bhupendra Kumar Patel S/o Dolamani Patel Aged About 28 Years R/o House No.68, Nawagarh, Saraipali, District : Mahasamund, Chhattisgarh

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Bodhan Ram S/o Nandlal Devangan Aged About 38 Years R/o Ward No.10,

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Lalpur, Khairagarh, District : Rajnandgaon, Chhattisgarh

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Sunil Kumar Pal S/o Shri Anjori Pal Aged About 33 Years R/o 46 Dilwa Para, Lalpur, Dadhi, Bemetara, District : Bemetara, Chhattisgarh

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Vedprakash S/o Shri Ramji Kurmi Aged About 37 Years R/o 14, Churchrungpur, Kabeerdham, District : Kawardha (Kabirdham), Chhattisgarh

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---- Petitioners

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Versus

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State Of Chhattisgarh Through The Secretary, School Education Department, Ministry, Mahanadi Bhawan, Nava Raipur, District : Raipur, Chhattisgarh

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Director Directorate Of Public Instruction Raipur, District : Raipur, Chhattisgarh

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---- Respondents

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(Cause Title taken from Case Information System)

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For Petitioner : Ms. Naushina Afrin Ali, Advocate. For Respondents/State : Mr. H.S.Ahluwalia, Deputy Advocate General

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WPS No. 5320 of 2023

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Ajay Prasad Patel S/o D.P. Patel Aged About 38 Years R/o Village Surta, Tehsil Ramanujnagar, District : Surajpur, Chhattisgarh

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Surya Prakash Padwar S/o Kamleshwar Prasad Aged About 26 Years R/o Village Salka, Tehsil Lakhanpur, District : Surguja (Ambikapur), Chhattisgarh

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Vivek Gupta S/o Ambika Prasad Aged About 23 Years R/o Village Jamirapath, Tehsil Jamirapath, District : Balrampur, Chhattisgarh

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---- Petitioners

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Versus

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State Of Chhattisgarh Through Secretary School Education Department, Atal Nagar, Raipur, District : Raipur, Chhattisgarh

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State Of Chhattisgarh Through Secretary General Administration Department, Atal Nagar, Raipur, District : Raipur, Chhattisgarh

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The Joint Director Public Education Directorate, Raipur, District : Raipur, Chhattisgarh

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---- Respondents

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(Cause Title taken from Case Information System)

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For Petitioner : Mr. Gyan Prakash Shukla, Advocate.

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For Respondents/State : Mr. H.S.Ahluwalia, Deputy Advocate General

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Hon'ble Mr. Ramesh Sinha, Chief Justice

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Hon’ble Mr. N.K.Chandravanshi, Judge

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Order on Board

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Per Ramesh Sinha, Chief Justice

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08/08 /2023

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1. Since the issue involved in all the above writ petitions are similar, they are being heard together. With the consent of learned counsel for the parties, the matter is being heard finally.

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2. The petitioner,in WPS No. 5515/2023, has prayed for the following reliefs:

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“(i) That, this Hon'ble Court may kindly be pleased to declare ultra-vires the notification Annexure P-1 dated 11/7/23 in the interest of justice.

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(ii) That, this Hon'ble Court may kindly be pleased to direct the respondent authorities to restore earlier provision of subject wise setup for appointment of Teacher, in the interest of justice.

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(iii) That the advertisement dated 4/5/23 may also be quashed in respect of teachers.

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(iv) Any other relief which may be suitable in the facts and circumstances of the case, may also be granted.”

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3. The petitioners, in WPS No. 3179/2023, have prayed for the following reliefs:

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particular subject) of Chhattisgarh School Education Service (Education and Administrative Cadre) Recruitment and Promotion Rules, 2019 in the interest of justice.

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(ii) That, this Hon'ble Court may kindly be pleased to direct the respondent authorities to restore earlier provision of subject wise graduation for appointment of Teacher, in the interest of justice.

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(iii) That the advertisement Annexure P/7 may also be quashed in respect of teachers.”

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4. The petitioners, in WPS No. 3518/2023, have prayed for the following reliefs:

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“(i) That, this Hon'ble Court may kindly be pleased to declare ultra-vires the notification Annexure P-1 in respect of teachers removing subject wise criteria from column no. 8 Sr. No. 36 of Schedule-II and Sr. No. ii of Annexure-I (in respect of mentioning only graduate instead of graduate in particular subject) of Chhattisgarh School Education Administrative Service (Education and Recruitment Cadre) Promotion Rules 2019, in the interest of justice.

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(iii) That the advertisement Annexure P/7 may also be quashed in respect of teachers.

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(iv) Any other relief which may be suitable in the facts and circumstances of the case, may also be granted.”

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5. The petitioners, in WPS No.5070/2023, have prayed for the following reliefs:

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“10.1 That, the Hon'ble Court may kindly be pleased to call for record to how are they issued Teacher post is without subject wise.

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10.2. That, the Hon'ble Court may kindly be pleased to setaside/quash the gazette notification dated 11/07/2023 and direct to State for recruitment of the post of the teachers is also be subject wise.

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10.3. Any other relief which the Hon'ble Court may deem fit, in the interest of justice.”

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6. The petitioners, in WPS No.5162/2023, have prayed for the following reliefs: “10.1 That the Hon'ble Court may kindly be pleased to call for the entire records pertaining to the case of the petitioner. 10.2 That, Hon'ble Court may kindly be pleased to issue an appropriate writ/order/direction and quash the Gazette notification dated 04.05.2023 (Annexure P/1) & Notification dated 11.07.2023 (Annexure P/2).

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10.3 That, Hon'ble Court may kindly be pleased to issue an appropriate writ/order /direction and direct the respondent authorities to clearly prescribe the educational qualification subject wise for appointment on the post of Teacher in view of the direction and rules framed by NCTE, in the year 2010. 10.4 Any other relief/reliefs which the Hon'ble Court may deem fit and proper in the facts and circumstances of the case may also kindly be granted.”

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7. The petitioners, in WPS No.5320/2023, have prayed for the following reliefs: “10.1. That, the Hon'ble Court may kindly set aside and quash the amendment dated 11.07.2023 and advertisement dated 04.05.2023.

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10.2. That, any other relief, which this Hon'ble Court may deemed just and fit in facts and circumstances of the case.”

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8. The facts of the case, in WPS No. 5515/2023 are that petitioner is post graduate in English literature with D.Ed and TET qualification. The service condition for appointment of Upper Division Teacher ( for short, the UDT ) is governed by Chhattisgarh School Education Service (Education and Administrative Cadre) Promotion Rules 2019 ( for short, the Rules of 2019 ) and as per Schedule -II, the post of UDT was to be filled up subject-wise and further graduation along with D.Ed. or B.Ed. was the necessary qualification and the subject of graduation was given in Annexure-I. In the advertisement dated 04.05.2023, instead of notifying vacancy subject-wise, general vacancies have been shown whereas, as per the rules, the post of Teacher is to be filled subject-wise. The said issue came up before the learned Single Judge in WPS 3877/2023 ( Ved Prakash & Another v. State of Chhattisgarh

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& Others ) in which the learned Single Judge, vide order dated 26.06.2023 passed an interim order to the effect that purely as an interim measure, the respondents shall not finalise the recruitment process till the next date of hearing. When the State realized its mistake, in order to overcome the interim order dated 26.06.2023, it amended the Rules of 2019 by calling Cabinet meeting on 11.07.2023 (without passing the same in Legislative Assembly) and removed the subject-wise provision from Schedule II. The above amendment is contrary to provision of the Right of Children to Free and Compulsory Education Act, 2009 ( for short, the Act of 2009 ) where it has been clearly mentioned that there will be separate teachers of Physics, Maths and other subjects. The said amendment will violate right of equality and unequals will be treated equally and further there is no object to make such amendment which will adversely affect the quality of education.

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9. Mr. Shrivastava, learned counsel for the petitioner submits that Rules under Article 309 of the Constitution can be framed/amended only by Legislative Assembly but in present case, the Cabinet has directed for such amendment. Further, the Cabinet has only directed amendment for Bastar and Sarguja, but the entire Rules of 2019 has been amended. The State has moved an application for vacating stay and reply on the basis of subsequent amendment. The learned Single Judge, while hearing WPS No. 3350/2023 alongwith other connected matters, vide order dated 13.07.2023, modified the earlier interim order to the extent that the respondents were directed to ensure that 06 posts to the category to which each of the petitioners belong, shall be kept vacant and further that any recruitment, if finalized in between, the same shall also be subject to the outcome of the present writ petitions.

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10. Mr. Shrivastava submits that the action of the respondent/State is unconstitutional, discriminatory and not sustainable in the eye of law. The

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above amendment will violate Right to equality and unequals will be treated equally and further there is no object to make such amendment and further it will adversely effect the quality of education.

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11. The facts, in brief, as projected by the petitioners, in WPS No. 3179/2023 and WPS No. 3518/2023 are that the service condition for appointment of UDT is governed by the Rules of 2019 and as per Schedule -II, the post of UDT was to be filled-up subject-wise and further graduation along with D.Ed. or B.Ed. was necessary qualification and the subject of graduation was given in Annexure-1. Earlier Chhattisgarh Teacher (Panchayat) Cadre (Recruitment and Conditions of Service) Rules 2012 ( for short, the Rules of 2012 ) for appointment of Teacher in Panchayat Department and Chhattisgarh Teacher (Nagriya Nikay) Cadre (Recruitment and Condition of Service) Rules 2013 ( for short, the Rules of 2013 ) for appointment of Teacher in Nagriya Nikay Department and also the appointment of Teacher (Panchayat) was on the basis of particular subject. In the Education Department also, appointment of Teacher was as per Chhattisgarh Non Gazetted Class-III Education Service (School Level Service) Recruitment and Promotion Rules 2008 also the post of UDT to be filled up subject-wise. By notification dated 04.05.2023 the State Government has amended the Rules of 2019 and omitted "direct recruitment shall be subject-wise" from Schedule-II column -8 and further from Sr. No. 1 and 2 of Annexure-I has been amended (as mentioned in paragraph 8.5 of the petition) and due to the amended notification by which the bar of subject has been removed and candidate of any subject can be appointed for the post of Upper Division Teacher of any subject and an Arts Graduate candidate can apply for Maths and Science Teacher and a Maths Graduate can apply for Sanskrit Teacher, Sanskrit Graduate can apply for Maths, Science Teacher. In such a situation, the quality of education would be badly affected and it will not be possible to give effective and quality education. The petitioners are graduate

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in English Literature but due to above amendment, they will not be get proper chance to get selected in their subject of graduation and they may be selected in some other subject and in such case, their efficiency to teach subject of graduation will be adversely affected There should be some nexus with object to amend the Rules but here it does not appear any nexus with the object to amend the rules and without any basis such amendment has been brought and it further not clear what is the object to bring such amendment. An advertisement has also been issued in compliance of amended recruitment of Teachers, on 04.05.2023. Recently, on 06.05.2023 an advertisement has been issued for Atmanand School in which Graduation in particular subject is mandatory requirement and in same State, for other Government Schools, appointment of Teacher has been generalized. Hence, this petition.

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12. In WPS No. 5070/2023 and WPS No. 5320/2023 also, challenge is made to the gazette notification dated 11.07.2023, as aforesaid. Additionally, in WPS No. 5320/2023, the advertisement dated 04.05.2023 has also been challenged.

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13. In WPS No. 5162/2023 , challenge is made to the notifications dated 04.05.2023 and 11.07.2023. The petitioners herein pray that appropriate directions may be issued to the respondent authorities to clearly prescribe the education qualification subject-wise for appointment on the post of Teacher in view of the direction and Rules framed by the National Council for Teacher Education ( for short, the NCTE ) in the year 2010.

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14. Ms. Naushina Afrin Ali, learned counsel for the petitioners (in WPS No. 5162/2023), Mr. Ajay Shrivastava {in WPS No. 5515/2023 and 3179/2023}, Mr. C.P.Lahrey, {in WPS No. 3518/2023} Mr. Ravikar Patel {in WPS No. 5070/2023} and Mr. Gyan Prakash Shukla {in WPS No. 5320/2023}, learned counsel for the respective petitioners submit that the Director, Directorate of

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Public Instructions, Chhattisgarh issued an advertisement dated 04.05.2023, to fill-up vacant posts of Teachers by way of examination to be conducted by the Chhattisgarh Vyavsayik Pariksha Mandal (CGVYAPAM). The petitioners applied for the post of Teacher as they were in possession of relevant qualification as required under the Rules of 2019. The petitioners are Graduates in English and hence applied for the said post. As many as 1113 posts of Teacher (E Cadre) were to be filled up in the Surguja and Bastar Division and 4659 posts of Teacher (T Cadre) were to be filled up in the Surguja and Bastar Division. After filling up of the application, the eligible candidates were issued with the admit cards and a written examination was conducted by the CGVYAPAM on 10.06.2023. Thereafter, result was published wherein the petitioners were in the list of successful candidates. The respondent authorities have framed the Rules of 2019 on 05.03.2019 and prescribed the minimum education qualification i.e. Graduation along with B.Ed and D.Ed for appointment of Teacher and as per Schedule-II, serial No. 33, the post of Teacher was to be filled-up subjectwise. The State Government, vide gazette notification dated 04.05.2023 whereby in exercise of the power conferred by the proviso to Article 309 of the Constitution of India, the Governor of Chhattisgarh has made the amendment in the Rules of 2019 whereby in column (8) of serial number 36 of Schedule-II, the word "Direct Recruitment shall be subject-wise" was omitted. Further, the petitioners have challenged the gazette notification dated 11.07.2023 whereby the State Government has amended the Rules of 2019 whereby in column (8) of serial number 33 of Schedule-II, the words and symbol "This promotion/Direct recruitment shall be on subject-wise posts approved in the setup" was omitted. While framing the rules, the respondent authority has omitted the words i.e. "direct recruitment shall be subject-wise" and the word "this promotion/direct recruitment shall be on subject-wise posts approved in the setup" which is much contrary to the rules framed by the NCTE, which is the primary governing body to prescribe

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and fix the educational qualifications and other eligibility criteria for appointment of Teachers. The petitioners who had participated in the recruitment process have preferred representation before the concerned authorities highlighting their grievance and also mentioning that the Rules of 2019 framed by the respondent authorities are contrary to the rules/ notifications issued / framed by the NCTE, but to no avail. Due to amended notification by which the criteria of subject have been removed and candidate of any subject can be appointed for the post of Teacher of any subject and the Arts Graduate candidate can apply for Maths and Science Teacher, Maths Graduate can apply or Sanskrit Teacher, Sanskrit Graduate can apply for Maths or Science Teacher. In view of the amendment, the quality of education would be severely affected because now the criteria of subject have been removed and the subject expert will not be selected and it will not be possible to give effective and quality education to the students of Class 6^th to 8^th from the Teacher who are actually not qualified to teach subjects like Maths, Science, English or Hindi to students of Middle School. The petitioners are graduates in subject English and are also successful candidates in the written examination conducted by the respondents, because of the impugned amendment in the Rule of 2019, wherein the compulsion of subject-wise selection has been omitted, meaning thereby if the petitioners are selected on the post of Teacher, it is not necessary that they would be teaching subject English rather they would be teaching any other subject other than English. Due to above impugned amendment, they will not be getting proper chance to get selected in their subject of graduation and they may be selected in some other subject and in such case, their efficiency to teach subject of graduation i.e. English will be adversely affected, thereby bringing down the quality of education. especially in the formative years of a student's career. There should be some nexus with object to amend the Rules but here it does not appear to be so and without any basis such amendment has been brought and it is further not

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clear as to what is the object to bring about such amendment. The respondents are virtually playing with the formative years of a student and making their foundation weak. The petitioners have raised their grievances primarily on the ground that the respondent authority has omitted the words i.e. "direct recruitment shall be subject-wise and the word "this promotion/direct. recruitment shall be on subject-wise posts approved in the setup", which is contrary to the gazette notification dated 23.08.2010 as well as the gazette notification dated 29.07.2011 (Annexure P/7 to WPS No. 5162/2023).

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15. Ms. Ali further submits that earlier, the Director, Directorate of Public Instruction had issued an advertisement on 09.03.2019 (Annexure P/8) wherein the respondent authority has prescribed the minimum educational qualification to be graduation along with B.Ed and D.Ed for appointment of Teacher and as per schedule II the post of Teacher was to be filled-up subject-wise. But the current advertisement for appointment of Assistant Teacher and Teacher has been made doing away with the criteria for selection subject-wise. After the amendment vide gazette notification dated 04.05.2023, the District Education officer, Baloda-Bazar has issued an advertisement on 09.05.2023 for appointment of Lecturer, Teacher and Assistant Teacher in the Swami Aatmanand School wherein minimum education qualification has been prescribed and the same was to be filled-up subject-wise. Further, on 05.05.2023 the Eklavya Aadarsh School has issued an advertisement for appointment of Guest Teacher wherein the same has to be filled up subject-wise. Moreover, the Joint Director Education, Durg Division, has issued the promotion order on 12.05.2023 wherein the Assistant Teacher (LB) E-Cadre has been promoted on the post of Teacher (E-Cadre) Social Science and Biology. In this regard it is submitted that after the amendment in the Rules 2019 the promotion has been done on the basis of subject for the post of Teacher. As per the

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schedule of the Act of 2009 wherein it has been prescribed that norms and standards for appointment of Teacher for class 6^th to 8^th i.e. (1) at least one teacher per class so that there shall be at least one teacher each for- (i) Science and Mathematics , (ii) Social Studies, and (iii) Languages.

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16. The impugned notifications brought in by the respondent authorities are in complete violation of the rules and the amendment which has been brought about is in gross violation of the law laid down by the Hon'ble Supreme Court pertaining to the principle that rules of the game cannot be changed once the game has been set in motion. The petitioners are before this Hon'ble Court assailing the arbitrary and illegal action on the part of the Respondent authorities which has virtually taken away their constitutional rights as prescribed under Article 14 and 16 of the Constitution of India. The impugned amendment in Rules of 2019 dated 11/07/2023 is in complete violation of the Rules, 2010 and Act of 2009, As per the Gazette notification dated 23.08.2010, issued by the NCTE, which is the primary governing body to prescribe and fix the educational qualifications and other eligibility criteria for appointment of Teachers, in various schools, the qualifications as prescribed by NCTE for being appointed as a Teacher is a Graduation degree in the relevant subject along with other qualifications such as TET, B.Ed. Change in the Rule for Teacher whereby subject-wise criteria has been omitted by the Respondent authorities is in complete violation of the Rule, 2009 and Rule, 2010 of the Central Government wherein it has been prescribed that the post of Teacher has to be filled up subject-wise. In the earlier advertisement issued in the month of March, 2019, candidates were disqualified for having passed TET/CTET examination after the commencement of the result, but by way of the impugned amendment the entire selection process has been changed and now candidates will not be appointed on the post of Teacher subject-wise. By the impugned amendment dated 11.07.2023, since the subject-wise criteria has been done

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away with, it would adversely affect the final selection of the petitioners on the post of Teacher without any subject criteria. Now the selection would be purely on the basis of the merit list and rank secured by the petitioners and other identically placed candidates from amongst the merit list. The object behind the amendment of Rule, 2019 with regards to the compulsion of doing away with subject-wise recruitment has no nexus to the objective sought to be achieved. Fixing different criteria for selection of Teacher in different schools run and managed by the Government is violative of Article 14 and 16 of the Constitution of India as the State being a model employer cannot have two different criteria for appointment of a Teacher on regular basis by way of the current advertisement and on contractual basis in Swami Atmanand and Eklavya Vidyalaya on the basis of advertisement as annexed with the writ petition. The guidelines prescribed by NCTE as well as the Act of 2009 cannot be ignored while. The NCTE rule framing authority in the Center and the State Council for Teacher Education which is the subsidiary of NCTE in the State is duty bound to follow the criteria for appointment of teachers in middle school subject-wise. By way of the 42^nd Amendment in the Constitution in 1976 ‘Education’ has been shifted to concurrent list meaning thereby both the Parliament as well as the State Assemblies can legislate upon it but it cannot be said that the State may ignore the guidelines laid down by the Central Government for framing of qualification vis a vis the quality of education. The criteria which was earlier prescribed for appointment of the Teacher on the basis of his/her graduation qualification subject-wise defeats the very purpose of appointment thereby hampering the quality of education in the Government run schools, i.e. the rationale between the object and nexus gets defeated. Hence, the impugned amendment dated 11.07.2023 deserves to be declared ultra vires running contrary to the parent Act 2009 as well as 2010, 2011 which was amended in 2019.

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17. It is further submitted by Mr. Shrivastava and Ms. Ali that only the Central Government has the power to amend the Schedule by adding to, or omitting therefrom any norms and standards under Section 20 of the Act of 2009.

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18. Ms. Ali relies on the decisions of the Supreme Court in the matter K. Manjusree v. State of Andhra Pradesh, {(2008) 3 SCC 512, paragraphs 32, 33 and 36} and Mohd. Sohrab Khan v. Aligarh Muslim University , {(2009) 4 SCC 555, paragraphs 24, 25, 27, 28 and 29} to hold that when the rules of the game have been prescribed and the recruitment process has also commenced, the respondents cannot be permitted to deviate from the said rules and procedure prescribed. This Hon'ble Court in W.A. No.244/2022 and other identical cases has specifically held that the Rules and methods of recruitment cannot be altered once the selection process has already begun much to the prejudice of the candidates therein.

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19. Learned counsel for the petitioners further submit the action of the respondent is unconstitutional, discriminatory and not sustainable in the eye of law. For promotion, subject-wise criteria has not been removed and it is only for the direct recruitment. Due to amended notification by which the bar of subject has been removed and candidate of any subject can be appointed for the post of Upper Division Teacher of any subject and the Arts Graduate candidate can apply for Maths and Science Teacher, Maths Graduate can apply for Sanskrit Teacher, Sankrit Graduate can apply for Maths Science Teacher and in such case, quality of education that is to be imparted to the students would be badly affected.

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20. They further submit that the chances of selection of the petitioners is also going to be affected as any graduate from any stream is permitted to apply for the post of Teacher without having specialization in any particular subject. Further, there is no reasonable nexus with the object sought to be achieved by the impugned notification and the amendments brought in by

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the State.

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21. On the other hand, Mr. H.S.Ahluwalia, learned Deputy Advocate General appearing for the State/respondents, relying on the return filed in WPS No. 3179/2023, submits that the aforesaid petitions have been filed by the petitioners seeking prayer to declare ultra vires the notification dated 04.05.2023 in respect of teachers removing subject-wise criteria from column no. 8 serial no. 36 of Schedule II and Sr. No ii of Annexure (in respect of mentioning only graduate instead of graduate in particular subject) of the Rules of 2019 and to direct the respondent authorities to restore earlier provision of subject-wise graduation for appointment of teacher. It is submitted that, the petitioners have filed the instant petition stating that they are the graduate in English Literature and the appointment of UDT is governed by the Rules of 2019 and as per the Schedule II appended to the said Rules, the appointment in the post of UDT is to be filled up subject-wise with the qualification of graduation alongwith B.Ed/D.Ed and the subject of graduation is given in Annexure I appended to the said Rules, 2019. According to the petitioners, in earlier Recruitment Rules governing the field of appointment in the post of UDT ie. Rules of 2012, the appointment in the post of Teacher (Panchayat) was also to be done subject- wise and even as per the Rules of 2013, the appointment on the post of Teacher (Nagriya Nikay) was also to be done subject-wise. Further, as per Chhattisgarh Non Gazette Class III Education Service (School Level Service) Recruitment and Promotion Rules, 2008 also, the post of UDT was to be filled up subject-wise, but, by the impugned notification dated 04.05.2023, by carrying out the amendment in the Rules, 2019, the word "direct recruitment shall be subject-wise" has been omitted from Schedule Il column no. 8 and sr. no. 1 and 2 of Annexure I and due to the said amendment, the candidate of any subject can be appointed for the post of UDT of any subject, meaning thereby, an Arts Graduate candidate can apply

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for appointment as Teacher for Maths and Science subject, similarly a Maths Graduate can apply for appointment as Teacher for Sanskrit subject and a Sanskrit graduate. candidate can also apply for appointment as Teacher for Maths and Science Teacher and as such the quality of education would adversely and badly be affected and the subject expert will not be selected for imparting education in particular subject in which the applicant is having expertise.

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22. Mr. Ahluwalia further submits that these petitions are devoid of merit and substance and accordingly is liable to be dismissed at the threshold as the petitioners have failed to establish that the decision of the State Government in carrying out the amendment in the Rules of 2019 is violative of any provision of Constitution of India. The petitioners being graduate in English Literature have already been provided opportunity by which they also would be considered for appointment on the post of Teacher. Thus, their fundamental rights have already been protected by providing a specific provision for their consideration of appointment. On a bare perusal of the writ petitions, it appears that the petitioners are trying to make out a case that by way of the impugned amendment removing the subject-wise appointment from the Rules of 2019, the quality of education would badly be affected and the subject expert will not be selected for the subject in which they are having the expertise and they will not get proper chance to get selected in their subject of graduation. It is also well-settled that if any rule which affects the right of a person to be considered for appointment which is a condition of service, may challenge the same, but, he cannot challenge the statutory rules on the ground that mere chance of appointment is being adversely affected because the chances of appointment are not conditions of service and did not tantamount to change the condition of service. The State Government in its discretion and based on heir past experience in making recruitment on the post of Teachers, has taken a policy decision to remove

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the subject-wise selection in the post of Assistant Teacher and Teacher. So far as the appointment to the post of Assistant Teacher and Teacher is concerned, in this regard it is submitted that the basic job of an Assistant Teacher is to teach from class 1 to class 5 and of a Teacher to teach from class 6 to Class 8. A person having graduation degree in any of the subject, compulsorily studies all the common subjects like Hindi, English, Science, Maths, Social Science and Sanskrit till Class 10" and as such, as per their caliber and knowledge, that person can easily and smoothly teach the students up to class 8^th . The reason behind issuance of the impugned notification thereby removing the subject-wise selection in the post of Teacher is also that on earlier occasion, the State Government issued advertisement for filling up 14,580 posts of Assistant. Teachers, Teachers and Lecturers in different subjects to be made for all Districts of the State of Chhattisgarh, out of the total advertised posts, 10834 posts have, as of now, been filled up and remaining posts in which no appointment is done are 3746. It is pertinent that in the said remaining posts, the appointment could not be made mainly for the reason that though the post of Teacher where as per the Rules, 2019 the appointment is to be done subject-wise, was advertised, but, the candidates having the graduation degree in particular subject for which the post is advertised were not found. For example, in earlier advertisement, total 2000 post of Teacher in English subject were advertised prescribing the minimum qualification of graduation in English Literature, out of which 1138 posts of Teacher (English) could not be filled up for want of eligible candidates who have the graduation in English Literature. Similarly the same situation was also there for appointment in the post of Teacher in Maths subject and Biology subject. It is submitted that non-filling up the said post due to non availability of candidates having the graduation degree in particular subject for which the post is advertised, would frustrate the object and attempt of the State Government for making available the teachers in such school where the number of teacher is either

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zero or one.

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23. The data of the schools falling in 10 districts of State of Chhattisgarh where despite making all efforts, the appointment in the schools where the number of teacher is either zero or one, could not be made, is provided in paragraph 9 of the return. One of the reason behind removing the subject-wise selection, is also that in comparison to the students having graduation degree in Science and Maths subjects, there are huge number of students candidates having the graduation degree in other than Science and Maths subjects in the State of Chhattisgarh. It is submitted that to remove the paucity of teachers in the school, the said decision to remove the subjectwise selection/appointment in the post of Teacher has been consciously taken by the State Government being the benevolent and welfare State which cannot, in any manner, be said to be arbitrary and persevere. Further, as per the norms of the SCERT, training orientation programme is also being conducted for the Teachers periodically to develop the skill of teaching to the students and by way of the said training orientation programme, a person having graduation degree in Arts subject, can easily teach and impart education to the students up to the class 8th. Thus, there is also a mechanism developed for skill development of the teachers by the State Government. Under the aforesaid circumstances, it cannot be said that due to the alleged amendment, the quality of education would be adversely affected. The present petitions are filed by the petitioners challenging the amendments in the Rules of 2019 framed by the State in exercise of power under Article 309 of the Constitution of India. There is no dispute with regard to the legislative competence or any jurisdictional challenge in the instant petition The bone of the contention of petitioner revolves around the fact that they are in a disadvantageous position with respect to the Rules of 2019 in comparison to Rules earlier framed. There is no illegality or perversity on the part of the answering respondents in issuance the impugned notifications

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and the main reason behind it is to fulfill the paucity of teachers in the schools where the number of teacher is either zero or one. It is submitted that the petitioners have failed to make out any case to declare the impugned notification / amendment ultra vires to the Constitution of India. Thus, the present petition is devoid of merit and substance and accordingly is liable to be dismissed at the threshold.

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24. It is settled position of law that a statutory rule/legislation can only be challenged on the limited grounds permissible under the law. There is always a presumption in favour of the constitutionality of any enactment. No declaration to legislative enactment be made as unconstitutional and void solely on account of unjust and harsh provisions or because it is apprehended to violate some right of the citizen, unless, it can be shown that such provision in fact prohibited the rights guaranteed or protected by the Constitution. The presumption is always in favour of the constitutionality of legislation and the burden is upon the person who attacks it to show that it is invalid and it has to be specifically established that the Rule under challenge is of such nature that no prudent man can accept legality of the same being highly arbitrary or unreasonable. The petitioners have failed to take any such ground therefore the present writ petitions are liable to be dismissed.

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25. In support of his contentions, Mr. Ahluwalia relies on the decision of the Supreme Court in the matter of BALCO Employees’ Union (Regd.) v. Union of India {(2002) 2 SCC 333}, State of T.N. v. P. Krishnamurthy {(2006) 4 SCC 517}, State of M.P. v. Rakesh Kohli, {(2012) 6 SCC 312}, State of Gujarat v. Arvindkumar T. Tiwari {(2012) 9 SCC 545}, and a decision of this Court in Sushila Rajwade & Others v. State of Chhattisgarh , Department of Health and Family Welfare & Another {2021 SCC OnLine Chh 3728}. Mr. Ahluwalia further submits that the decision to remove the subject-wise selection/appointment in the post of

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Teacher is purely a policy decision of the State Government and the Supreme court also, in the case of Air Commodore Naveen Jain v. Union of India & Others { (2019) 10 SCC 34} has affirmed the view relying on various judicial precedents that policy of the State affecting chances of appointment cannot be said to be illegal, arbitrary and discriminatory so as to attract the violation of either Article 14 or Article 16 of the Constitution.

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26. We have heard learned counsel for the parties, perused the pleadings and documents appended thereto.

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27. Basically, all these petitions challenge the notifications dated 04.05.2023 and 11.05.2023. They read as under:

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“Atal Nagar, the 4^th May 2023 NOTIFICATION

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No. F12-17/2018/2002.- In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Chhattisgarh, hereby makes the following further amendment in the Chhattisgarh School Education Services (Educational and Administrative Cadre) Recruitment and Promotion Rules, 2019, namely:-

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AMENDMENT

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In the said rules, -

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In Column (8) of serial number 36 of Schedule-II, the words ‘Direct recruitment shall be subject wise.”

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For serial number (i) and (ii) of Annexure-I, the following serial number shall be substituted, namely:-

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“(i) Assistant Teacher:-

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(1) Senior Secondary with at least 45% and (2) D.Ed or B.Ed or B.El.Ed. Passed. and

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(3) Passed the T.E.T. (Primary Level)

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(ii) Teacher:-

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(1) Graduate with minimum 45% and (2) D.Ed or B.Ed or B.El.Ed. Passed. and

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(3) Passed the T.E.T. (Upper Primary Level)

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By order and in the name of the Governor of Chhattisgarh, PULAK BHATTACHARYA, Under Secretary”

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“Atal Nagar, the 11^th July 2023

NOTIFICATION

AMENDMENT

In the said rules, -

In column (8) of serial No. 33 of Schedule-II, the words and symbol “This promotion/Direct recruitment shall be on subject-wise posts approved in the setup.” shall be omitted.

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By order and in the name of the Governor of Chhattisgarh, PULAK BHATTACHARYA, Under Secretary”

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28. The crux of the matter is that after these amendments, any candidate having graduate degree can apply for the post of Teacher meaning thereby that a science graduate may be appointed as Teacher to teach Hindi subject and an Arts graduate candidate may be appointed to teach Science. The main argument of the petitioners is that in view of the amendment quality of education would be severely affected because the criteria of subject have been removed and the subject expert will not be selected and it will not be possible to give effective and quality education to the Students of Class 6^th to 8^th from the Teacher who are actually not qualified to teach subjects like Maths, Science, English or Hindi to students of Middle School. It is the further contention of the petitioners that the chances of their selection is also going to be affected as any graduate from any stream is permitted to apply for the post of Teacher without having specialization in any particular subject and that there is no reasonable nexus with the object sought to be achieved by the impugned notification and the amendments brought in by the State.

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29. As rightly pointed out by the learned State Counsel, there is always a presumption in favour of the constitutionality of any enactment and no declaration to legislative enactment be made as unconstitutional and void solely on account of unjust and harsh provisions or because it is apprehended to violate some right of the citizen, unless, it can be shown that

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such provision in fact prohibited the rights guaranteed or protected by the Constitution. The presumption is always in favour of the constitutionality of legislation and the burden is upon the person who attacks it to show that it is invalid and it has to be specifically established that the Rule under challenge is of such nature that no prudent man can accept legality of the same being highly arbitrary or unreasonable. Further, by the impugned amendment, the educational qualification has not been lowered or reduced which may affect the teaching ability of a candidate who has to teach the Middle School students.

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30. The Supreme Court, in Balco Employees’ Union (Regd.) (supra), after taking note of various judgments rendered earlier i.e. Rustom Cavasjee Cooper v. Union of India {(1970) 1 SCC 248}, State of M.P. v. Nandlal Jaiswal {(1986) 4 SCC 566}, G.B.Mahajan v. Jalgaon Municipal Council {(1991) 3 SCC 91}, Peerless General Finance & Investment Co. Ltd. v. Reserve Bank of India {(1992) 2 SCC 343}, R.K.Garg v. Union of India {(1996) 2 SCC 405}, M.P.Oil Extraction v. State of M.P. {(1997) 7 SCC 592}, Bhavesh D. Parish v. Union of India {(2000) 5 SCC 471}, and Narmada Bachao Andolan v. Union of India {(2000) 10 SCC 664}, observed as under:

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“46. It is evident from the above that it is neither within the domain of the courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical.”

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31. The Supreme Court, in P. Krishnamurthy (supra), observed as under:

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“15. There is a presumption in favour of constitutionality or

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validity of a sub-ordinate Legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognized that a sub-ordinate legislation can be challenged under any of the following grounds :

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a) Lack of legislative competence to make the sub-ordinate legislation.

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b) Violation of Fundamental Rights guaranteed under the Constitution of India.

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c) Violation of any provision of the Constitution of India.

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d) Failure to conform to the Statute under which it is made or exceeding the limits of authority conferred by the enabling Act. e) Repugnancy to the laws of the land, that is, any enactment . f) Manifest arbitrariness/unreasonableness (to an extent where court might well say that Legislature never intended to give authority to make such Rules).”

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32. In Arvindkumar T. Tiwari (supra), the Supreme Court observed as under:

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“ 12. Fixing eligibility for a particular post or even for admission to a course falls within the exclusive domain of the legislature/executive and cannot be the subject matter of judicial review, unless found to be arbitrary, unreasonable or has been fixed without keeping in mind the nature of service, for which appointments are to be made, or has no rational nexus with the object(s) sought to be achieved by the statute. Such eligibility can be changed even for the purpose of promotion, unilaterally and the person seeking such promotion cannot raise the grievance that he should be governed only by the rules existing, when he joined service. In the matter of appointments, the authority concerned has unfettered powers so far as the procedural aspects are concerned, but it must meet the requirement of eligibility etc. The court should therefore, refrain from interfering, unless the appointments so made, or the rejection of a candidature is found to have been done at the cost of ‘fair play’, ‘good conscious’ and ‘equity’. (Vide: State of J & K v. Shiv Ram Sharma {(1999) 3 SCC 653} and Praveen Singh v. State of Punjab , {(2000) 8 SCC 633).”

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33. The petitioners have pleaded that their chances of selection would be diminished if the amendments under challenge is allowed to continue. As per the return filed by the State, there are many schools where there are negligible number of teachers. In order to fill up the vacancies, some steps are definitely required to be taken at the end of the State. Even otherwise also, the petitioners have not been able to demonstrate as to how the impugned amendments are contrary to the Act/Rules or any provisions of the Constitution so as to hold it to be ultra-vires.

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34. Applying the ratio laid down by the Supreme Court in the cases referred to above, we are of the considered opinion that these petition lacks merit and they deserve to be and are accordingly dismissed .

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Sd/Sd/- (N.K.Chandravanshi) (Ramesh Sinha) JUDGE CHIEF JUSTICE

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Amit

Bharat Khande v. State of Chhattisgarh

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Bharat Khande v. State of Chhattisgarh

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