Dismissed

Ashesh Kumar v. The State Of Bihar and Ors.

Patna HC4 Jul 2014CWJC/9180/2014

Case brief

AI extract

What is this about?

The Patna High Court dismissed a writ petition challenging the constitutional validity of Bihar Zila Parishad Rules, 2006 regarding teacher recruitment eligibility. The court, relying on National Council for Teacher Education Act, 1993 and precedents, upheld the rule requiring B.Ed from recognized institutions.

What did the court decide?

Petition dismissed in limine holding no merit in the constitutional challenge to the Rules.

Ashesh Kumar Vs The State Of Bihar and Ors. — Education and Admissions | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.9180 of 2014

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====================================================== Ashesh Kumar, s/o Shri Chandeshwar Prasad Singh, resident of Village - Bangra, P.O. and P.S. - Sugauli , District - East Champaran. .... .... Petitioner/s

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Versus 1. The State of Bihar through the Principal Secretary, Education Department, Government of Bihar, Patna. 2. The Principal Secretary, Education Department, Government of Bihar, Patna.

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.... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Y. V. Giri, Senior Advocate Mr. Nikhil Agrawal, Advocate For the Respondent/s : Mr. Lalit Kishore, P. A. A. G.

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CORAM: HONOURABLE THE CHIEF JUSTICE

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And

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HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER

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(Per: HONOURABLE THE CHIEF JUSTICE)

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04-07-2014 This Petition under Article 226 of the Constitution has been filed by one Ashesh Kumar to challenge the constitutional validity of Rule 4(ka) (iii) and Rule 4(kha) (iii) of the Bihar Zila Parishad Secondary and Higher Secondary Teachers (Employment and Service Conditions) Rules, 2006 (hereinafter referred to as „the 2006 Rules‟) insofar as they exclude the students of the educational institutions in the State of Jammu and Kashmir from employment in the schools in the State of Bihar.

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At the outset we may note that the present

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Patna High Court CWJC No.9180 of 2014 (5) dt.04-07-2014

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petitioner and some others had first approached this Court in CWJC No.7135 of 2013 to challenge their non-selection for appointment as teachers under the 2006 Rules. Having lost before the learned single Judge, they have preferred Letters Patent Appeal No.721 of 2014. The appeal has been admitted to final hearing.

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Having thus lost before the learned single Judge, one of the petitioners Ashesh Kumar has filed this Petition to challenge the constitutional validity of the aforesaid Rules.

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Rule 4(ka) (iii) and Rule 4(kha) (iii) read as under:-

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“ 4- ¼d½ (iii) jk’Vzh; v/;kid f”k{kk ifj’kn vf/kfu;e ykxw gksus ds iwoZ ekU;rk izkIr izf”k{k.k laLFkk ls ch0 ,M0 vFkok vf/kfu;e ykxw gksus ds ckn jk’Vzh; v/;kid f”k{kk ifj’kn }kjk ekU;rk izkIr izf”k{k.k laLFkk ls ch0 ,M0 dh fMxzh A

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4- ¼[k½ (iii) jk’Vzh; v/;kid f”k{kk ifj’kn vf/kfu;e ykxw gksus ds iwoZ ekU;rk izkIr izf”k{k.k laLFkk ls ch0 ,M0 vFkok vf/kfu;e ykxw gksus ds ckn jk’Vzh; v/;kid f”k{kk ifj’kn }kjk ekU;rk izkIr izf”k{k.k laLFkk ls ch0 ,M0 dh fMxzh A ”

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Rule 4(ka) of the 2006 Rules provides for eligibility for appointment as a teacher in Secondary School. Rule 4 (kha) thereof provides for eligibility for appointment as a teacher in the Higher Secondary School. For Secondary School it provides , inter alia, that a candidate must have secured B. Ed degree from a recognized institution prior to coming in force of the National Council for Teacher Education Act, 1993 (hereinafter referred to as „the Act of 1993‟). Since the said Act, the B. Ed degree must have been obtained from an institution recognized by the National Council for Teacher Education (hereinafter referred to as „the Council‟)

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It is not in dispute that the petitioner has secured

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Patna High Court CWJC No.9180 of 2014 (5) dt.04-07-2014

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B.Ed degree from Jammu University. The Jammu University being not recognized by the Council, his qualification is not acceptable to the State of Bihar. The petitioner has thus been non-suited for appointment as teacher in a Secondary or a Higher Secondary School in the State of Bihar.

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Learned counsel Mr. Y. V. Giri has appeared for the petitioner. He has submitted that the Act of 1993 does not apply in the State of Jammu and Kashmir. The question of Jammu University being recognized by the Council does not arise. In the circumstances, the petitioner and such others cannot be non-suited on the ground that their educational qualification is not recognized by the State of Bihar. He has submitted that the above referred Rules 4(ka) (iii) and 4(kha) (iii) which recognize the educational qualification obtained from an institution recognized by the Council alone is arbitrary and discriminatory to the extent that all students from the institutions in the State of Jammu and Kashmir are automatically ousted from consideration. He has submitted that the Jammu University is a recognized University inasmuch as it has been recognized by the University Grants Commission.

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The Petition is contested by the State of Bihar. Learned Principal Additional Advocate General Mr. Lalit Kishore has appeared for the respondents. Mr. Lalit Kishore has submitted that as an employer, the State of Bihar has a right to decide upon the qualifications required for appointment to the schools established and run in the State of Bihar. He has further submitted that the impugned Rules are framed in consonance with the Act of 1993 and the National Council for Teacher Education (Determination of Minimum qualifications for Recruitment of Teachers in Schools) Regulations of 2001

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(hereinafter referred to as “the Regulations of 2001”) made thereunder. No infirmity, therefore, can be found in the said Rules. He has further submitted that the similar Rules had been the subject matter of consideration by this Court earlier in the matters of Dhirendra Kumar Singh & Ors. Vs. The State of Bihar & Ors. [2008 (1) PLJR 583]; and of Acharya and Fazil Sangharsh Morcha & Ors. Vs. The State of Bihar & Anr. [2009 (1) PLJR 515]. The Division Bench of this Court has upheld the constitutional validity of the said Rules. The matter is, therefore, not open for consideration.

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In the matter of Dhirendra Kumar Singh (supra), identical set of Rules for the Municipal Secondary and Higher Secondary Schools were the subject matter of challenge before this Court insofar as the Rules did not recognize the qualification other than the B.Ed degree, although the other qualifications were considered equivalent to the B.Ed. degree. The Hon‟ble Bench held, “ It is for the Rule making authority to provide from time to time eligibility criterion for recruitment to any post. It is for such Rule making authority to add or delete any of the qualifications in the eligibility criteria at any time by primary or subordinate legislation.”

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Considering the similar challenge in the case of Bihar Nagar Nikay Madhyamik and Uchchatar Madhyamik Shikshak (Niyojan Awam Seva Shartein) Niyamawali, 2006 in the matter of Acharya and Fazil Sangharsh Morcha & Ors., this Court upheld the validity of the identical set of rules. The Court held that Act of 1993 having come into force, “ it is incumbent upon the State Government to prescribe the qualification for recruitment of teachers in conformity with the NCTE Act and the Regulations framed thereunder .” The

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rules under challenge were upheld by the Bench stating that the said rules meet the requirement of the eligibility prescribed under the Regulations of 2001. In the words of the Court, “ As a matter of fact, there is nothing unreasonable in the Rules, 2006 that provide for the recruitment of oriental teachers that the candidates must have B.Ed qualification either from a recognized instituion prior to the coming into force of NCTE Act or after coming its force, a B.Ed degree from the recognized institution thereunder. In our view by not providing this eligibility would have been violative of the provisions contained in the NCTE Act and the regulations framed thereunder.”

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Mr. Y. V. Giri has vehemently submitted that the challenge by the petitioner is not identical to the challenge in the above referred two cases. He has submitted that once the Act of 1993 does not apply to the State of Jammu and Kashmir, there is no scope for any student acquiring qualification from that State to be employed as teacher elsewhere. The Rules under challenge are discriminatory to that extent.

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It is indeed true that although the course attended by the petitioner may be otherwise a recognized course, the petitioner cannot secure employment in the State of Bihar on the basis of the said qualification. But then, it is the prerogative of the employer to provide for eligibility for a post under it. Further, as held in the matter of Acharya and Fazil Sangharsh Morcha & Ors., the aforesaid Rules is in consonance with the Act of 1993.

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We, therefore, do not see any merit in challenge to the constitutional validity of Rules 4(ka) (iii) and 4(kha) (iii) of the Rules of 2006.

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Patna High Court CWJC No.9180 of 2014 (5) dt.04-07-2014

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For the aforesaid reasons, Petition is dismissed in

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limine.

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(R.M. Doshit, CJ)