REKHA Vs. UOI
LAWS(DLH)-2007-3-116
HIGH COURT OF DELHI
Decided on March 19,2007

KENDRIYA VIDYALAYA SANGATHAN,REKHA,DHARMENDER KUMAR Appellant
VERSUS
UOI,ZAFAR ALAM Respondents

JUDGEMENT

MUKUL MUDGAL, J. - (1.) This writ petition challenges the order dated 21st January, 2006 of the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as the "CAT") by which the CAT quashed the advertisement issued by the Respondent No.2, Kendriya Vidyalaya Sangathan, which prescribed B.Ed. as educational qualification for the appointment to the post of primary teachers and that those candidates who possessed B.Ed as an educational qualification were also held eligible for appointment and were permitted to submit application. The relevant portion of the advertisement prescribing the eligibility reads as follows: "i) Senior Secondary (Class XII) with 50% marks: ii) JBT after Senior Secondary (Class XII or B.Ed. or equivalent or B.EL.Ed. iii) Proficiency in teaching through Hindi and English Media (will be judged by way of descriptive type written examination of 10th Standard.)"
(2.) For the sake of convenience, we have taken up facts of the W.P. (C) No. 15098-100/2006 which are similar and illustrative of the issue involved in the WP(C) Nos. 4708/2006 and 9994-10022/2006. The brief facts of the case as stated by the petitioner are as follows: a) On 12th February 2005, the respondent No.2 issued an advertisement inviting applications from the candidates for the post of primary teachers. The advertisement prescribed inter alia B.Ed. as an educational qualification for the appointment to the said post. b) On 23rd May 2005 the examination was conducted for filling up the said posts. The petitioners, who are all qualified with B.Ed. and thus fulfilled the criteria laid down in the advertisement issued on 12th February, 2005 had applied in terms of the advertisement and participated in the examination. c) Subsequently the results were declared, the petitioners qualified and were declared successful in the examination. d) The respondents no.3 and 4 who were also unsuccessful aspirants however filed an application being O.A. No.2141/2005 before the CAT challenging the participation of B.Ed. qualified candidates in the Selection process. The respondents no.3 and 4 pleaded that NCERT had prescribed a minimum qualification and that B.Ed. was not one of the essential qualifications prescribed for the appointment on the post of the primary teachers. e) That CAT, by its order dated 21st February 2006 quashed the advertisement dated 12th February 2005 and held that the candidates who possessed B.Ed. and other educational qualifications without possessing JBT or equivalent qualifications are liable to be excluded and directed the respondents no.1 and 2 to issue a fresh advertisement for filling of the post of primary teachers to the exclusion of the candidates who possess B.Ed. and other higher educational qualifications without possessing JBT or equivalent qualifications.
(3.) The learned counsel for the petitioner Mr. R. S. Hedge submitted as follows: a) The order dated 21st February 2006 is contrary to the law laid down by the Hon'ble Supreme Court in Yogesh Kumar and ors. v. Govt. of NCT, Delhi and ors., (2003) 3 SCC 548. In Yogesh kumar's case (supra) the qualification of B.Ed. was not prescribed in the advertisement but in spite of the same, the candidates possessing B.Ed. degree had applied for the post of the primary teachers were excluded from the selection and appointment to the said post whereas, in the present case, the B.Ed was prescribed as a qualification in the advertisement prospective candidates for the said post. Further, there is no provision under the Act or the rules framed thereunder which prohibits the authority from prescribing B.Ed. as a qualification. He relied upon the position of law laid down by the Hon'ble Supreme Court in Yogesh Kumar's case (supra) , the relevant paragraph of which reads as follows: "5. 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-recognized qualification in the field or 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 fild 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 for 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 qualifications, it cannot be held that B.Ed. 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 B.Ed. degree qualification and the latter cannot be treated as higher qualification to the former. 8. This last argument advanced also does not impress us at all. Recruitment to public services should be held strictly in accordance with the terms of advertisement and the recruitment rules, if any. Deviation from the rules allows entry to ineligible persons and deprives many others who could have competed for the post. Merely because in the past some deviation and departure was made in considering the B.Ed. candidates and we are told that was so done because of the paucity of TTC candidates, we cannot allow a patent illegality to continue. The recruitment authorities were well aware that candidates with qualification of TTC and B.Ed. are available yet they chose to restrict entry for appointment only to TTC-pass candidates. It is open to the recruiting authorities to evolve a policy of recruitment and to decide the source from which the recruitment is to be made. So far as B.Ed. qualification is concerned, in the connected appeals (CAs Nos.1726-28 of 2001) arising from Kerala which are heard with this appeal, we have already taken the view that B.Ed. qualification cannot be treated as a qualification higher than TTC because the nature of the training imparted for grant of certificate and for degree is totally different and between them there is no parity whatsoever. It is projected before us that presently more candidates available for category. Whether for the aforesaid reasons, B.Ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider B.Ed. candidates for the present vacancies advertised as eligible. In our view, the Division Bench of the Delhi High Court was fully justified in coming to the conclusion that B.Ed. candidates were rightly excluded by the authorities from selection and appointment as primary teachers. We make it clear that we are not called upon to express any opinion on any B.Ed. candidates appointed as primary teachers pursuant to advertisements in the past and our decision is confined only to the advertisement which was under challenge before the High Court and in this appeal." Thus, the respondent no.2 was within its powers in prescribing B.Ed. as an educational qualification and the CAT has erred in quashing the advertisement. b) The respondents no.3 to 5 have admittedly participated in the selection process and after being unsuccessful have challenged the qualification and the selection process without impleading the successful candidates. Therefore, this petition is contrary to the law laid down by the Hon'ble Supreme Court in the case All India SC and ST Employees' Association v. A. Arthur Jeen and ors., (2001) 6 SCC 380. The relevant portion of the said judgment reads as follows: "13. Although the candidates included in the panel showing their provisional selection do not get vested right to appointment, they will be surely interested in protecting and defending the select list. It is the admitted position that before the Tribunal the successful candidates whose names were included in the panel of selection were not made parties. The argument of the learned counsel that since the names and particulars of the successful candidates included in the panel were not given, they could not be made parties, has no force. The applicants before the Tribunal could have made efforts to get the particulars; at least they ought to have impleaded some of the successful candidates may be in a representative capacity; if the large number of candidates were there and if there was any difficulty in service of notices on them, they could have taken appropriate steps to serve them by any one of the modes permissible in law with the leave of the Tribunal. This Court in Prabodh Verma and Ors. Vs. State of Uttar Pradesh and Ors. (1984) 4 SCC 251 has held that in writ petitions filed against the State questioning the validity of recruitment of a large number of persons in service could not be proceeded with to hear and take decision adverse to those affected persons without getting them or their representatives impleaded as parties. In para 50 of the said judgment, summarizing the conclusions this Court in regard to impleading of respondents has stated that :- "A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties." 14. This Court in para 4 of the judgment in A.M.S. Sushanth and Ors. Vs. M.Sujatha and ors. (2000) 10 SCC 197 has stated thus:- "We find that none of the persons who were selected and whose appointments were set aside by the High Court had been impleaded as a party-respondent. It appears that a public notice was given in a representative capacity only with regard to the appointment to the post of Assistant Sericulture Officer. The direction of the High Court, however, is not confined to that post alone and it is the appointments to he other posts also which have been set aside. This could not be done. The principles of natural justice demanded that any person who was going to be adversely affected by the order should have had an opportunity of being heard. That apart, one would have expected the High Court to have considered the report submitted under Section 65 on its merits and then decided whether the said report should be accepted or not." c) The CAT has failed to appreciate that though under the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools), Regulations, 2001, (hereinafter referred to as the "Regulations") have been framed for recruitment of teachers it only prescribes the minimum academic and professional qualification. There is no bar under the Act or the Rules which prescribe any other qualification in addition to the minimum qualification prescribed in the regulation. In the advertisement, the candidates possessing B.Ed. were also made eligible for applying to the post of primary teacher. Therefore, the petitioners were entitled to apply and be considered to the said post. d) The application filed by the respondent no.3 to 5 is liable to be dismissed on the ground of delay as the advertisement was issued on 12th February 2005 and the selection process with the written examination had commenced in May 2005 and the results were declared on 5th September, 2005.;


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