- (1.) THE delay in filing this special appeal has been sufficiently explained in the affidavit of Shri Ramesh Chandra, District Basic Education Officer, Buland Shahar. THE delay condonation application is allowed. THE special appeal was heard.
(2.) WE have heard Shri K.S. Kushwaha, learned Standing Counsel for the State-appellant. Shri Shailendra appears for the petitioner-respondents. The State of UP. through Secretary, Basic Education, U.R Lucknow and other State respondents-appellants have filed this special appeal, against the judgment of learned Single Judge dated 5.11.2009, by which he has held that the diploma in teaching Urdu language awarded by the Aligarh Muslim University, of 2 years duration, recognised by the National Council of Teachers Education, under (The) National Council of Teachers Education Act, 1993, is equivalent to the basic teachers certificates in Urdu, from the Government training centres at Lucknow, Agra, Mawana in Distt. Meerut and Sakaldiha in District Chandauli, and thus the petitioner-respondents are entitled to be appointed as Asstt. Teachers in Basic Schools, as against the posts covered by Rule 8 (4) of the UP. Basic Education Teachers Service Rules, 1981. Learned Single Judge has directed the respondent- appellants not to make appointment on the posts covered by Rule 8 (4) of the Rules of 1981 from the candidates, who have, or who may have obtained Special BTC Training, Urdu, and to initiate process for appointment of Asstt. Teachers in primary level educational institutions for teaching Urdu, which are lying vacant All the petitioners pursued and were awarded diplomas by Aligarh Muslim University, known as Diploma in Teaching Urdu of 2 years duration recognised by the NCTE under the NCTE Act, 1993. By the Writ Petition No. 1393 of 2009 giving rise to this special appeal, they challenged the notification dated 21.11.2008, and prayed for a writ of mandamus to the State-respondents to consider them for appointments as Asstt. Teachers in Primary Schools for teaching Urdu language on the basis of their qualifications treated to be equivalent to Basic Teachers Certificate from the Training Centres of the State Government under Rule 8 (4) (ii) of the U.P. Basic Education Teachers Service Rules, 1981 (in short the Rules of 1981), vide Government Order dated 26.9.1994.
(3.) SHRI K.S. Kushwaha, learned Standing Counsel appearing for the State appellants submits: (a) The writ petition challenging the order of appointment dated 21.11.2008, by the Basic Shiksha Adhikari, Buland Shahar appointing 31 persons as Asstt. Teachers Urdu on the basis of their qualification of Special BTC Urdu, was not maintainable, without impleading all the appointees; (b) The academic and training qualifications are different, and are treated differently in the Rules of 1981, for different purposes. The petitioners have diploma in teaching from Aligarh Mulsim University. It is an academic qualification, which is not equivalent to the training qualification. (c) The Supreme Court has held in Basic Education Board, U.P. v. Bhupendra Rai, 2008 (1) ESC 160, that the provisions of NCTE Act, and those of UP Basic Education Act are not overriding. Consequently, the Rules framed under the U.P. Basic Education Act are neither superseded, nor nullified because of the provisions of NCTE Act. Under Rule 8 of the Rules of 1981 the words 'equivalent' to the prescribed training qualification refers to the training qualification BTC. The diploma in teaching Urdu of Aligarh Muslim University was never declared equivalent to BTC. (d) The Government Order dated 26.9.1994 allowing equivalence has become meaningless after the judgment of the Supreme Court in Mohd. Sartaz Ahmad's case and that in any case the equivalence has been cancelled by the State Government by amendment in the Rules of 1981, dated 6.8.1997. (e) The advertisement dated 14.9.2001 for recruitment issued by Basic Shiksha Adhikari, Buland Shahar clearly prescribed training qualification, 'BTC from the District Institute of Education and Training, Buland Shahar. Any application beyond the qualifications prescribed in the advertisement was not required to be considered. (f) The eligibility qualification should be considered by the appropriate authority and not by Courts vide L. Muthu Kumar v. State of Tamil Nadu, AIR 2000 SC 3084 (paras 8, 9 and 10), and in Sfafe of Rajasthan and others v. Lata Arun, JT 2002 (5) SC 210 (para 13). Rule 8 of the Rules of 1981 is quoted as below : "8. (1) The essential qualifications of candidates for appointment to a post referred to in clause (a) of Rule 5, shall be as shown below against each: JUDGEMENT_480_ADJ1_2011Image1.jpg (2) The essential qualification of candidates for appointment to a post referred to in sub-clause (iii) and(iv) of clause (h) of Rule 5 for teaching Science, Mathematics, Craft or any language other than Hindi and Urdu shall be as follows: (I) A Bachelor's Degree from a University established by Law in India or a Degree recognized by the Government as equivalent thereto with Science, Mathematics, Craft or particular language, as the case may be, as one of the subjects, and (ii) Training qualification consisting of a Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of teaching or any other training course recognized by the Government as equivalent thereto. (3) The minimum experience of candidates for promotion to a post referred to in clause (b) of Rule 5 shall be as shown below against each : JUDGEMENT_480_ADJ1_2011Image2.jpg Provided that if sufficient number of suitable or eligible candidates are not available for promotion to the posts mentioned at serial numbers (ii) or (iii) the field of eligibility may be extended by the Board by giving relaxation in the period of experience. (4) The essential qualification of candidates for appointment to the posts referred to in clause (a) and sub-clause (iii) and (iv) of clause (b) of Rule 5 for teaching Urdu language shall be as follows: (I) A Bachelor's Degree from a University established by Law in India or a Degree recognized by the Government as equivalent thereto with Urdu, as one of the subjects. (ii) Basic Teacher's Certificate from any of the training centres in Lucknow, Agra, Mawana in district Meerut and Sakaldiha in district Chandauli established by the Government for imparting training for teaching Urdu or any other training qualification recognized by the Government as equivalent thereto. (5) The essential qualifications of candidates having proficiency in Urdu for appointment to the posts referred to in sub-clause (ii) of clause (a) of Rule 5 for teaching in Urdu medium shall be as follows: (I) A Bachelor's Degree from a University established by Law in India or a Degree recognized by the Government as equivalent thereto. The qualifications for proficiency in Urdu will be such as may be prescribed from time to time by the Government. (ii) Training Qualification of two years BTC Urdu special training course.";