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2020 Supreme(Pat) 536
IN THE HIGH COURT OF JUDICATURE AT PATNA
ANIL KUMAR UPADHYAY, J.
Hareram Kumar and Others – Petitioners
Versus
The State of Bihar through Principal Secretary, Department of Education – Respondent
Civil Writ Jurisdiction Case No. 6670 of 2020
Decided On : 04-11-2020
Advocate Appeared:
For the Petitioners: Mr. Y.V. Giri, Mr. Ashish Giri.
For the Respondents: Mr. Ashutosh Ranjan Pandey, Mrs. Shilpa Singh, Ms. Abhanjali, Mr. Sunil Kumar Singh.
For the Interveners : Mr. P.K. Shahi, Mr. S.S. Sundaram, Mr. D.K. Sinha, Mr. Mrigank Mauli, Mr. Prince Kumar Mishra.
Headnote:
School Laws – Appointment of Primary Teachers – For appointment of teachers State Government has framed its own rule – Rule of game has been changed at fag end of selection – Combined merit list has been frustrated and guideline was issued that separate merit list be prepared one for D.El.Ed. candidates and other for B.Ed. candidates – D.El.Ed. candidates has not only been preferred in the matter of selection but preference was to the extent of exclusion of B.Ed. candidates i.e. if D.El.Ed. candidates are not available only then B.Ed. candidates may be appointed – Submission that B.Ed. candidates are more qualified and not suitable for primary education does not appeal to this Court – When D.El.Ed. and B.Ed. candidates have passed rigorous of TET then preferential treatment to D.El.Ed. and exclusion of B.Ed. candidates is not reasonable and there is no rational basis for such treatment – Action of respondents in nullifying combined merit list and directing preparation of fresh merit list of D.El.Ed. and B.Ed. candidates and decision to appoint D.El.Ed. only and in absence of D.El.Ed. consider case for appointment of B.Ed. candidates does not satisfy requirement of reasonable classification under Articles 14 and 16 of Constitution of India – Respondents directed to complete selection process on the basis of combined merit list – Henceforth, if State wishes to grant preferential treatment to D.El.Ed. candidates they have to take a conscious policy decision by prescribing weightage to D.El.Ed. candidates in process of preparation of merit list for appointment of Assistant Teachers. (Paras 28, 29, 30 and 35)
Right of Children to Free and Compulsory Education Act, 2009 – Section 23 – Appointment of Primary Teachers – Employer has choice to fix suitability and preferential treatment but decision to extend preferential treatment cannot be understood as exclusion of B.Ed. candidates from zone of consideration until D.El.Ed. candidates are exhausted – Conceptually it is not a preferential treatment – In common selection process candidates who passed teachers eligibility test are per se discriminated if State adopts two different yardsticks for those who passed TET for primary teachers. (Para 31)
AIR 1983 SC 852; AIR 1990 SC 405; (2008) 3 SCC 512; (2008) 7 SCC 11; 2014 (2) PLJR (SC) 394 – Relied.
(2010) 2 SCC 637 – Distinguished.
(2006) 9 SCC 1; (2013) 2 SCC 617; (2011) 4 SCC 798; (2018) 1 SCC 149; (2003) 2 SCC 349; (2007) 9 SCC 497; (2015) 8 SCC 484; (2008) 7 SCC 11; (2009) 4 SCC 555; (2018) 3 SCC 55; (2020) SCC Online 310; (1993) 1 SCC 78 – Referred.
JUDGMENT :
ANIL KUMAR UPADHYAY, J.
1. 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. 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
