SURENDRA PRASAD MAURYA Vs. STATE OF U P

JUDGEMENT

(1.) This bunch of writ petitions has been filed by those candidates whose applications for undergoing training in the Special B. T. C. Course, 2004 has been rejected on a variety of grounds. The petitioners have prayed for a writ of mandamus commanding the respondents to send them for training in the said course. The facts leading to the filing of the writ petition is, that the State Government issued a Government Order dated 14. 1. 2004 inviting applications for imparting Special B. T. C. Course to 46189 candidates who already possessed teachers qualification of B. Ed. /l. T. training certificate. Clause 3 (2) of the State Government Order stipulated that only those candidates were eligible to apply who possessed a B. Ed/l. T. degree from a University recognized by NCTE, or a Deemed University or a Post Graduate College or the State Government or a Central Government run College or a training institute. Based on the aforesaid Government Order, the Director, State Council for Education, Research and Training issued an advertisement dated 22. 1. 2004 inviting applications from eligible candidates. The qualifications mentioned in this advertisement was the same as indicated in the Government order dated 14. 1. 2004. Subsequently, the State Government issued another Government Order dated 20. 2. 2004 also inviting applications from such eligible candidates possessing the training qualification in physical education, namely, C. P. Ed. , D. P. Ed. and a B. P. Ed. Clause (1) of this Government Order stipulated that in addition to B. Ed. /l. T. qualified persons, those who have a graduate degree with C. P. Ed. , D. P. Ed. or B. Ped training certificate, such applicants could also apply for the Special B. T. C. Course, 2004, provided they had obtained the training certificate from a recognized University or a State or Central run Post Graduate or Training Institution in the State as a regular student. Based on the aforesaid Government Order, the Director issued an amended advertisement dated 22. 2. 2004 also inviting applications from such eligible candidates. Clause (2) of this advertisement prescribed the essential qualifications which was more or less in consonance with the Government Order of 20. 2. 2004 indicating a B. P. Ed. , D. P. Ed. and C. P. Ed. certificate as well as graduate degree from an institution run/established by a State University, recognized Post Graduate Colleges, training institutions recognized by the NCTE. Based on the aforesaid advertisements, a large number of applicants applied for the Special B. T. C. Course of 2004. The application of many candidates were rejected on a variety of grounds who have approached this Court for the redressal of their grievances praying for a writ of mandamus commanding the respondents to permit them to undergo the Special B. T. C. Course of 2004. The grounds for the rejection of the applications can be grouped as under - (1) B. Ed. degree was obtained by a candidate from outside the State of U. P. (2) B. Ed. degree was obtained by a candidate not as a regular student but through a correspondence course/distant Education Mode from institutions within the State of U. P. or outside the State of U. P. (3) B. P. Ed. , C. P. Ed. and D. P. Ed. training certificate obtained from institutions from outside the State of U. P. (4) B. P. Ed. , C. P. Ed. And D. P. Ed. training certificate obtained from such institution which is not recognised by NCTE, established within or outside the State of U. P. Heard Sri Ashok Khare, Senior Advocate, on behalf of some of the petitioners. Sri Shailendra, Sri V. K. Singh, Sri K. C. Shukla, Advocates also placed their submissions on behalf of the petitioners. Other counsels chose not to address the Court and, in all probability, followed the submissions raised by the counsels, as stated aforesaid. On behalf of the respondents, Sri K. K. Chand, Standing Counsel has placed his submissions. It was contended that some of the petitioners had obtained a B. Ed. degree from outside of State of U. P. which degree was recognized not only by the U. G. C. but also by the NCTE and therefore, the petitioners were eligible to be considered for the said B. T. C. Course, 2004. The learned counsel submitted that the advertisement of 14. 1. 2004 did not stipulate any requirement that the B. Ed. degree should be obtained from a College or a University located within the State of U. P. and if there was such a requirement under the Government Order, the same would not only be arbitrary but would also amount to 100% reservation for the local candidates. The learned counsel further submitted that similarly the petitioners' applications could not be rejected who had obtained the B. P. Ed. , C. P. Ed. , D. P. Ed. . training certificate from such institution or college recognized by NCTE, on the ground, that the institution was located outside the State of U. P. Such action would not only be arbitrary but also discriminatory. Not only this, even if the petitioner's had obtained the training certificate from an institution which was not recognized by NCTE, nonetheless, they are eligible for consideration to the Special B. T. C. Course. Further, the learned counsel submitted that B. Ed. degree obtained from correspondence course or by distinct education mode could not be rejected on the ground that the degree was obtained from outside the State of U. P. In this regard, the learned counsel for the petitioners have placed reliance upon various judgments which will be referred herein after. On the other hand, the learned standing counsel submitted that the controversy involved in all these petitions have been settled at rest by various judgments of this Court which has been affirmed by the Supreme Court and therefore, this exercise is futile and that all these petitions should be dismissed summarily. The learned standing counsel has also placed several decisions of this Court as well as of the Supreme court in support of his submissions which will be dealt with hereinafter. The learned standing counsel also submitted that it is not necessary for the Court to await the decision of the larger Bench which has been referred to resolve the issues raised in the two Division Bench judgments of this Court, namely, in the case of Upendra Rai vs. State of U. P. and others, 2000 (2)UPLBEC 1340 and in the case of Vijai Kumar Kushwaha and others vs. State of U. P. and others, 2003 (3)UPLBEC 2211 in view of the fact that the decision of the Division Bench in the case of Upendra Rai (supra) has been overruled by the Supreme Court in the case of U. P. Basic Education, Bulandshahr Vs. Upendra Rai and others, 2008 (7) ADJ 274. In Km. Heena Afroj vs. State of U. P. and others, decided on 23. 7. 2004 in Writ Petition No. 2933 of 2004 (M/s), the petitioner in the said petition prayed for a writ of mandamus commanding the opposite parties to consider the petitioner's application for Special Course, 2004. Her application was rejected on the ground that she had obtained a B. P. Ed. degree from a University outside the State of U. P. This Court while dismissing the writ petition observed: "it appears that before issuing advertisement dated 22. 2. 2004 (Annexure No. 2), the State Government issued an order on 22. 2. 2004 declaring the policy for selection of the candidates for special course of B. T. C. Training. It was decided by the Government that the candidates having C. P. Ed. , D. P. Ed and B. P. Ed training from the State run University and the State run degree college/training colleges as institutional students were eligible for apply special B. T. C. Course. According to this policy the candidates having completed their B. P. Ed. Training from the University or degree colleges situated out side the State and being conducted by the Government other than the State Government and the Central Government were excluded from the eligibility criteria for admission to the Special B. T. C. Course. " and further observed: ". . . . the para 2 of the advertisement dated 22. 2. 2004 as contained in Annexure no. 2 which has been issued in pursuance of the State policy as contained in the G. O. Dated 20. 2. 2004 (Annexure no. 8) is not ultra-vires or violative of Article 14 of the Constitution of India as has been contended by the petitioner in this writ petition. The petitioner is not found eligible for the course as per policy. " In Writ Petition No. 2481 (M/s of 2004, Awadhesh Kumar Singh and others vs. State of U. P. through Secretary, Basic Education, and others, the Court considered clause (2) of the advertisement and held that the same was not ultravires of Articles 14 and 15 of the Constitution of India. The Court held- "in view of the above, the petitioners having obtained B. P. Ed. degree from a University situated outside the State and not run by this State, are not eligible to apply for Special B. T. C. Course, 2004 as per clause- 2 of the impugned Advertisement which is not found ultra vires of Article 14 and 15 of the Constitution of India. " In Vijai Kumar Kushwaha and others vs. State of U. P. and others, 2003 (3)UPLBEC 2211, a Division Bench of this Court held that the classification made by the State Government inviting candidates who had obtained degrees from within the State of U. P. was not violative of Articles 14, 16 and 21 of the Constitution of India. The Court held- "the learned Single Judge dismissed the writ petition holding that it was open to the State Government to make classification in its Government order and the Government restricted the scope of appointment only to those candidates who obtained degree from within the State of Uttar Pradesh. Such restriction was held to be a valid restriction and could not be said to be violative of Articles 14, 16 and 21 of the Constitution of India. " In Writ Petition No. 24845 of 2004 ,mukesh Kumar vs. State of U. P. and others, decided on 27. 7. 2005, the Court after following the aforesaid judgments held - "further I find that judgment in Vijay Kumar Kushwaha's case (supra) held that restrictions by which the teaching qualification from outside the State were not recognized is not violative of Articles 14, 16 and 21 of the Constitution. I do not find that any such question has been raised which may require re- consideration of the judgments in Km. Heena Afroz's case (supra) Awadhesh Kumar Singh's case (supra) and Vijay Kumar Kushwaha's case (supra ). " In Basic Education Board, U. P. vs. Upendra Rai and others, 2008 (1)ESC 160, the Supreme Court has set aside the decision of the Division Bench of this Court in the case of Upendra Rai vs. Basic Education Board, 2000 (2)UPLBEC 1340 and further held that there was no violation of Article 14 of the Constitution of India by the impugned circular or the advertisement. The Supreme Court held as under:- "in our opinion the Division Bench also erred in holding that there was violation of Article 14 of the Constitution. We see no violation of Article 14 by the impugned circular or the advertisement dated 28. 4. 1999. This aspect of the matter has been discussed in detail in the judgment of the learned Single Judge of the High Court dated 19. 12. 1997 in writ petition No. 33856 of 1997. Hira Mani vs. District Basic Shiksha Adhikari connected with writ petition No. 32184 of 1997, Smt. Kiran Kumar v. State of U. P. and we see no reason to take a contrary view. Hence the view taken by the Division Bench, in our opinion, is not correct. " In view of the consistent pronouncement by various decisions of this Court, it is clear, that if the State Government has made a classification inviting applications from eligible candidates who have obtained degrees from within the State of U. P. , such restrictions is a valid restriction and leaves no scope for any improvement by the petitioners who have not obtained the degree from within the State of U. P. Consequently, in so far as the candidates who have obtained C. P. Ed. , B. P. Ed. and D. P. Ed. training certificates from institutions located outside the State of U. P. and even though the said certificates may be recognized by NCTE, the same is irrelevant and such candidates are not eligible for the B. T. C. Course, 2004. If a candidate, who possesses a B. P. Ed. , C. P. Ed. and D. P. Ed. certificate from an institution or college or a University which is located in the State of U. P. and which is recognized by NCTE, in that event such candidates would be eligible to apply for the Special B. T. C. Course, 2004. This leads to the next question. A large number of applications of various petitioners have been rejected on the ground that they have a B. Ed. degree from a University or a Post Graduate Colleges recognized by the NCTE but the said University or institutions is located outside the State of U. P. The advertisement dated 14. 1. 2004 prescribed the qualification inviting applications from eligible candidates who possess B. Ed. /l. T. degree from a University recognized by NCTE or a deemed University or a Post Graduate College or a State Government or Central Government run College or a Training Institute. The advertisement dated 22. 1. 2004 prescribed the same qualifications. The State Government issued another Government Order dated 22. 1. 2004 inviting applicants who possessed the B. Ped, C. Ped and D. P. Ed. training certificates. Clause (1)of this Government Order clearly indicated that this Government Order was in addition to the earlier Government Order dated 14. 1. 2004. The Government Order of 20. 2. 2004 was only confined to inviting applicants who possessed the B. P. Ed. , C. Ped and D. P. Ed. training certificates. The stipulation of having a degree from within the State of U. P. in the Government Order of 20. 2. 2004 was only confined for such candidates who possessed the B. P. Ed. , C. P. Ed. and D. P. Ed. training certificate. The embargo of obtaining a degree within the State of U. P. was not extended to a candidate who had obtained B. Ed. / L. T. degrees from a recognized University from outside the State of U. P. Consequently, this Court holds that a candidate who possessed a B. Ed. /l. T. degree which is recognized by a University or a deemed University or a Post Graduate College or a State Government or Central Government run College or a training institution recognised by N. C. T. E. whether located within or outside the State of U. P. would be eligible to apply for the Special B. T. C. Course, 2004. In Gyanendra Kumar Sharma and others vs. State of U. P. and others, decided on 3. 10. 2007, in Special Appeal No. 1271 of 2007, the Division Bench held that the correspondence course/distant mode of education is equal to a regular degree and that no distinction can be made between the two. Similar view was again held by another Division Bench in Shashi Sharma vs. State of U. P. and others, 2008 (1)ESC 517, in which it was held that an application cannot be ignored on the ground that the candidate had not obtained a B. Ed. /l. T. degree as a regular candidate. In view of the aforesaid decisions of the Division Bench, this Court holds that a candidate who has obtained a B. Ed. /l. T. degree through correspondence course or by distinct mode of education from an institution recognised by NCTE, whether located within or outside the State of U. P. , is eligible to apply for the Special B. T. C. Course, 2004. In the light of the aforesaid, the decisions cited by the learned counsels for the petitioners, namely, Niranjan Singh and others vs. State of U. P. and others, 2005 (1)ESC 354, Upendra Rai vs. State of U. P. and others, 2000 (2) UPLBEC 1340, State of U. P. vs. Anand Kumar Tewari and others, 2003 (3)AWC 2060, Dr. Pradeep Jain and others vs. Union of India, 1984 (3) SCC 654, Bhupendra Nath Tripathi and others vs. State of U. P. and others, 2008 (7)ADJ 274, has no application to the facts and circumstances of the case. In some of the petitions, the petitioners application has been rejected on the ground that they do not possess the degree or the training certificate which is recognized by NCTE and submitted that such an embargo was discriminatory. As stated aforesaid, the classification made by the State is a valid classification which requires no interference. It is a settled principle that if a candidate possesses a qualification from an institution which is not recognized, such candidate is not eligible to apply for the course in question. A feeble submission was made by one of the counsel for the petitioners that there is some difference in the qualification mentioned in the Government Order and the advertisement, and therefore, the qualifications in the advertisement would prevail. In Writ Petition No. 43815 of 2008, Girvar Singh vs. State of U. P. and others, decided on 29. 8. 2008, the Court held- "in the Government Order dated 10. 7. 2007, for admission in Special BTC Course 2007, there is no such restriction that the eligibility qualification ought to have been obtained from an institution situated only within the State of U. P. An advertisement which is consequential to the Government Order, is to be read consistent to the conditions contained in the Government Order since the selection to the aforesaid post is in pursuance to the Government Order and if there is any inconsistency between the Government Order and the advertisement, it is the Government Order which will prevail, though, even otherwise I do not find any such inconsistency therein. " I am in total agreement with the aforesaid proposition laid down. The advertisement was issued pursuant to the Government Order. If there is any inconsistency between the Government Order and the advertisement, the Government Order would prevail and the qualifications mentioned therein would prevail. Much water has flown since the filing of the writ petition. It is not known whether the course is continuing or not. It is not known whether the vacancies are still existing or not. Consequently, these writ petitions are disposed of in the light of the observations made above and in the event the petitioners apply afresh within six weeks from today, and in the event the vacancies are existing, and in the event the candidate is eligible, in that case, the respondents will admit the candidate for training in the Special B. T. C. Course, 2004. .