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2020 Supreme(Pat) 259
IN THE HIGH COURT OF JUDICATURE AT PATNA
Anil Kumar Upadhyay, J.
Hareram Kumar - Appellant
Versus
State of Bihar - Respondent
Civil Writ Jurisdiction Case No. 6670 of 2020
Decided On : 04-11-2020
Y.V. Giri, Advocate, Ashish Giri, Advocate, Ashutosh Ranjan Pandey, Advocate, Shilpa Singh, Advocate, Abhanjali, Advocate, Sunil Kumar Singh, Advocate, P.K. Shahi, Advocate, S.S. Sundaram, Advocate, D.K. Sinha, Advocate, Mrigank Mauli, Advocate, Prince Kumar Mishra, Advocate
The Court held that the impugned letter No. 1677 dated 17.12.2019, Annexure-7 to the writ petition is quashed.
Headnote:
NCTE prescribed minimum eligibility criteria for appointment of teachers. The NCTE thereafter issued another regulation by Gazette notification dated 16th December, 2014. They prescribed qualification for appointment of primary teachers (I to VIII). The NCTE again amended and introduced the eligibility condition for appointment of teachers. The State Government has framed its own rule for appointment of teachers. The petitioner has enclosed 2012 rules as Annexure-3. The State Government issued notification indicating therein the minimum qualification. The State of Bihar took decision to make appointment on the post of primary teachers and issued notification on 5.7.2019. The notification contains detailed programme for appointment to be carried out by the employment unit for appointment of teachers. The petitioners and others had submitted application for consideration of their cases for appointment. They have requisite qualification for appointment as primary teacher and they have passed the TET, mandatory for the purpose of appointment as teacher. In some of the districts common merit list was also prepared. The petitioners have brought on record, Annexure-6 series to demonstrate that one common merit list was prepared for appointment of primary teachers which includes D.El. Ed. and B.Ed. It appears from Annexure-6 series that the merit list was prepared on 16.12.2019. The Deputy Secretary of the Department issued letter No. 1677 dated 17.12.2019. In the said decision it was communicated that preference is to be given to the D.El.Ed. candidates and only after exhausting the D.El.Ed. candidates the remaining vacancy may be filled up by other categories of candidates. This is how the mechanism for preparation of merit list of D.Ed.Ed. and B.Ed. candidates was introduced in the midst of selection process and even in some districts merit list was prepared . The decision contained in Annexure-7 has the effect of nullifying the entire process and de novo preparation of merit list. In the aforesaid background the writ petitioner have approached this Court challenging the decision dated 17.12.2019 as contained in Annexure-7 to the writ petition. The Court held that the impugned letter No. 1677 dated 17.12.2019, Annexure-7 to the writ petition is quashed.
Fact of the Case:
The National Council of Teachers Education (NCTE) way back on 23.08.2010 prescribed minimum eligibility criteria for appointment of teachers. The NCTE thereafter issued another regulation by Gazette notification dated 16th December, 2014. They prescribed qualification for appointment of primary teachers (I to VIII). The NCTE again amended and introduced the eligibility condition for appointment of teachers. The State Government has framed its own rule for appointment of teachers. The petitioner has enclosed 2012 rules as Annexure-3. The State Government issued notification indicating therein the minimum qualification. The State of Bihar took decision to make appointment on the post of primary teachers and issued notification on 5.7.2019. The notification contains detailed programme for appointment to be carried out by the employment unit for appointment of teachers. The petitioners and others had submitted application for consideration of their cases for appointment. They have requisite qualification for appointment as primary teacher and they have passed the TET, mandatory for the purpose of appointment as teacher. In some of the districts common merit list was also prepared. The petitioners have brought on record, Annexure-6 series to demonstrate that one common merit list was prepared for appointment of primary teachers which includes D.El. Ed. and B.Ed. It appears from Annexure-6 series that the merit list was prepared on 16.12.2019. The Deputy Secretary of the Department issued letter No. 1677 dated 17.12.2019. In the said decision it was communicated that preference is to be given to the D.El.Ed. candidates and only after exhausting the D.El.Ed. candidates the remaining vacancy may be filled up by other categories of candidates. This is how the mechanism for preparation of merit list of D.Ed.Ed. and B.Ed. candidates was introduced in the midst of selection process and even in some districts merit list was prepared . The decision contained in Annexure-7 has the effect of nullifying the entire process and de novo preparation of merit list. In the aforesaid background the writ petitioner have approached this Court challenging the decision dated 17.12.2019 as contained in Annexure-7 to the writ petition.
Finding of the Court:
The Court held that the impugned letter No. 1677 dated 17.12.2019, Annexure-7 to the writ petition is quashed.
Issues: Whether the notification as contained in Annexure7 is governmental decision within the meaning of Article 166 of the Constitution of India as Article 166 obliges the State to express all executive action of the Government to be taken in the name of Governor, the notification as contained in Annexure-7 is notification of the Department and it is not expressed in the name of the Governor which is evident from the recital part of the notification Annexure-7 ? Whether at the stage when the selection process commenced and combined merit list prepared, the selection criteria can be changed by providing preferential treatment to the D.E.Ed. candidates to the exclusion of B.Ed. candidates? Whether separate merit list of the candidates of B.Ed. and D.El.Ed. is permissible once both categories of candidates have passed TET prescribed for appointment of primary teacher? Whether preferential treatment will amount to exclusion of the B.Ed. candidates and is colourable exercise of power as directly B.Ed. candidates are eligible and indirectly ineligible as they are excluded from the consideration zone until D.El.Ed. candidates are exhausted?
Ratio Decidendi: The Court held that the impugned letter No. 1677 dated 17.12.2019, Annexure-7 to the writ petition is quashed. The Court held that the impugned letter No. 1677 dated 17.12.2019, Annexure-7 to the writ petition is quashed.
Final Decision: The Court held that the impugned letter No. 1677 dated 17.12.2019, Annexure-7 to the writ petition is quashed.
JUDGMENT
Anil Kumar Upadhyay, J. - Heard learned counsel for the parties.
2. The 35 petitioners have filed the present writ petition challenging the decision as contained in letter No. 1677 dated 17.12.2019, Annexure-7 to the writ petition, issued under the signature of the Deputy Secretary, Education Department, Government of Bihar, whereby direction was issued for preparation of separate merit list of D.El.Ed. and B.Ed. candidates for appointment of primary teachers (class-I to V), (Gram Panchayat and Nagar Panchayat) as well as for preferential treatment to D.El.Ed. candidates in the matter of appointment.
3. The writ petition was heard on different dates. On 03.07.2020, the Court noted the submissions of the petitioners and passed the following orders:
"Heard Mr. Y.V. Giri, learned senior counsel appearing on behalf of the petitioners, Mrs. Shilpa Singh assisted by Ms. Abhanjali, for the State, Mr. Mrigank Mauli, learned counsel appearing for the intervenor-applicant and Mr. Sunil Kumar Singh, appearing for the NCTE. The petitioners are aggrieved by order dated 17.12.2019 as contained in Annexure-7, whereby the respondents have decided to consider the candidature of D.El.Ed. Candidates for appointment as teacher and only in the absence of D.El.Ed candidates, the candidature of others will be considered. Prima facie, the Court is of the view that the decision to consider the case of D.El.Ed. candidates and only if there is no D.El.Ed. Candidates, the candidature of others will be considered, appears to be violative of Articles 14 and 16 of the Constitution. Under the aforesaid circumstances, the Court is constrained to stay the operation of the order dated 17.12.2019, as contained in Annexure-7 until further orders. Put up this case on 7th September, 2020 to enable the respondents to file counter affidavit."
4. After the order dated 03.07.2020 interventions petitions have been filed on behalf of the D.El.Ed. Candidates. Considering their interests involved in the subject matter, the interventions applications for impleadment were allowed and they were directed to be added as party respondents vide order dated 08.09.2020 which is quoted below for ready reference:-
"Heard learned counsel for the petitioner and Mr. Y.V.Giri, learned counsel for the petitioner. Mr. P.K.Shahi, Mr. D.K.Sinha, learned senior counsel and Mr. Mrigank Mauli, Mr. S.S.Sundaram have appeared on behalf of the applicant, Mrs. Shilpa Singh for the State and Mr. Sunil Kumar Singh for the NCTE. The applicants have addressed on the issue of their impleadment as party respondents in the instant writ petition. For the reasons stated in the interlocutory applications for impleading the intervenors as party respondent, all the intervention applications are allowed. Let the intervenors be added as party respondents. Patna High Court CWJC No.6670 of 2020(3) dt.08-09-2020 2/2 I.A. Nos. 1,3,4,6, 7 and 8 of are accordingly allowed and disposed of. In the present writ petition, if so advised, not only the intervenors-respondents but NCTE may also file counter affidavit so that the writ petition may finally be decided. As prayed for, put up this case on 20th of September, 2020 on the top of the list for final adjudication."
5. The matter was finally heard on 21.09.2020. Parties have made their exhaustive arguments and they desired to file written notes of argument and as such the court finally concluded the hearing and directed them to file their written notes of argument.
6. One of the submissions of the parties was that appointment of the B.Ed. Candidates, who are eligible for appointment, can only be possible on the basis of separate merit list of B.Ed. when sufficient number of vacancies exist after accommodating the D.El.Ed. Candidates as primary teachers but there will be no vacancy after accommodating D.El. Ed. Candidates. In the aforesaid circumstances the Court directed the Principle Secretary of the Department to file an affidavit on the following issue:-
1. Th
