,,,,,
All these writ petitions involve a common issue, therefore, they are being heard analogously and decided concomitantly by a common order.",,,,,
2. These petitions have been preferred by the petitioners who are working as Lecturers, Upper Division Teachers (UDT), Varishtha Adhyapaks and",,,,,
Adhayapaks [hereinafter referred to as “the candidatesâ€] in Government Model Schools and Schools of Excellence [for short “the SOEâ€],,,,,
challenging the legality and propriety of the Circulars/Instructions issued by the respondents, dated 3-7-2017, 12-7-2017, 24-7-2018 and the",,,,,
communication dated 27-8-2018, whereby the respondents are conducting Online Examination of the teachers of the respective cadre deployed in the",,,,,
Model Schools/SOE, in order to enhance the quality of education in the aforesaid educational institutions by selecting eligible and competent teachers",,,,,
working in the School Education Department.,,,,,
3. For the sake of clarity and convenience, and in order to avoid repetition, the facts adumbrated in W.P. No.17138/2018 [Shailesh Pathak and others",,,,,
vs. State of M.P. and others] are noted. The petitioners contend that they have been working in the Model Schools/SOE after their selection by the,,,,,
Selection Committee which was conducted in the year 2010. Since they have been producing excellent results, therefore, they cannot be compelled to",,,,,
participate again in the Online selection process, as they have already undergone selection process and thereafter they have been selected in the year",,,,,
2012 as well. It is submitted that no syllabus was prescribed for the Online Examination being conducted by the respondents. It is strenuously urged,,,,,
that though they are producing excellent results but, they are being asked to compete along with the teachers working in the lower cadres, viz. Shiksha",,,,,
Karmis or contract teachers. In some of the petitions a challenge has also been made to the Instruction, dated 24-7-2018 issued by the respondents",,,,,
after the Online Examination, wherein it has been provided that the candidates who have qualified the Online Examination, would be given postings in",,,,,
Model Schools/SOE. In the previous Circular/Instructions dated 3-7-2017, such candidates were required to give choice of 20 Model Schools/SOE",,,,,
wherein they wished to get them posted, but by the communication, dated 24-7-2018 the same has been changed and it is stipulated that they have to",,,,,
give choice for posting in the Model Schools/SOE within the same districts where they are recently posted. It is urged with vehemence that by,,,,,
changing the criteria of selection, the respondents have changed the Rule of Game.",,,,,
4. On the bedrock of these contentions, it is submitted that the impugned Circulars/Instructions issued by the Government, are arbitrary and violative of",,,,,
Articles 14and 16 of the Constitution of India and change of selection criteria after commencement of the selection, is contrary to the law laid down",,,,,
by the Apex Court in the judgments rendered in the cases of Maharashtra State Road Transport Corporation and others vs. Rajendra Bhimrao,,,,,
Mandve and others, (2001) 10 SCC 51 and Tamil Nadu Computer Science B.Ed. Graduate Teachers Welfare Society (1) vs. Higher Secondary",,,,,
School Computer Teachers Association and others, (2009) 14 SCC 517. Learned counsel for the petitioners also referred the order passed by a Co-",,,,,
ordinate Bench of this Court in the case of Abhishek Shrivastava vs. State of M.P. and another, [W.P. No.17591/2018, dated 12-9-2018].",,,,,
5. Per contra, learned counsel for the respondents-State submitted that the State Government has taken a policy-decision with regard to posting of",,,,,
eligible teachers (candidates) in the Model Schools/SOE in order to provide excellent environment and quality education in the school education,,,,,
keeping in view the provisions enshrined in the Right of Children to Free and Compulsory Education Act, 2009 [hereafter referred to as “the",,,,,
Actâ€], the School Education Department has established, Model Schools at the District level and Schools of Excellence (SOE) in the Block level.",,,,,
The School Education Department has upgraded the schools and is running 235 Schools of Excellence and 201 Model Schools in the State. Earlier,",,,,,
monitoring of Model Schools was being done by the Central Government and now the same is being done by the State Government through School,,,,,
Education Department.,,,,,
6. On clarification of the query being made by this Court regarding admission in the Model Schools and the SOE, learned counsel for the respondents",,,,,
submitted that the admission to these schools for 41 District level Schools of Excellence and 201 Block level Model Schools in 9th Class for academic,,,,,
session 2019-2020 is done by conducting admission test. He produced a copy of the communication dated 7-01-2019, issued by the Commissioner,",,,,,
Public Instructions, M.P. addressed to the Director, M.P. Open School Education Council. He also produced a copy of the Circular dated 28-7-2018",,,,,
issued by the Commissioner, Public Instructions clarifying that candidates having B.Ed. qualification be selected for posting in Model Schools and",,,,,
SOE. In sum and substance, the argument is that it was a policy decision of the State to improve the quality of education in these identified educational",,,,,
institutions and, therefore, a decision was taken by the respondents to introduce an Online Examination for postings of teachers (candidates) in the",,,,,
Model Schools and SOE, to be selected on merits. He argued that the Instructions issued after the Online Examination dated 28-7-2018 does not",,,,,
amount to change of the Game of Rules. It deals with the procedure for counselling and the condition of Bachelor of Education (B.Ed.) qualification in,,,,,
addition to the Postgraduate (PG) qualification which was introduced keeping in view the provisions of the RTE Act and NCTE notification. It is,,,,,
further submitted that the State Government has framed rules for appointment of teachers in the School Education Department working on different,,,,,
posts viz. Adhyapak, Varishtha Adhyapak, Shiksha Karmis, Class-I and contract teachers etc., namely, Madhya Pradesh School Education Service",,,,,
(Teaching Cadre), Service Conditions and Recruitment Rules, 2018 [hereinafter referred to as “the Rules 2018â€]. Under the said Rules the said",,,,,
cadre has been made a District level cadre and the qualification of B.Ed. has been made an essential qualification. Keeping in view the provisions,,,,,
envisaged in the Act, a decision was taken to select candidates having qualification of B.Ed. for posting in Model Schools and SOE.",,,,,
7. Counsel for the respondents-State, in order to substantiate his contentions referred the orders dated 31-10-2017 passed by a Co-ordinate Bench of",,,,,
this Court in W. P. No.4406/2017 [Ganesh Kalmodiya vs. School Education Department]; W.P. No.10549/2017 [Narmada Prasad Mishra and others,,,,,
vs. State of M.P. and others], dated 21-11-2017; and W.P. No.17000/2018 [Suresh Singh Sikarwar vs. School Education Department] dated 30-7-",,,,,
2018. He also submitted that since the matter pertains to policy of the State Government, therefore, no interference is warranted in the writ",,,,,
jurisdiction. To bolster his submission, learned counsel for the State referred to the judgments rendered in the cases of Tamil Nadu Education",,,,,
Department Ministerial and General Subordinate Services Association and others vs. State of Tamil Nadu and others, (1980) 3 SCC 9;7 State of",,,,,
Punjab and others vs. Ram Lubhaya Bagga and others, (1998) 4 SCC 117; State of Himachal Pradesh and others vs. Himachal Pradesh Nizi",,,,,
Vyavsayik Prashikshan Kendra Sangh, (2011) 6 SCC 597; and State of Jharkhand and others vs. Ashok Kumar Dangi and others, (2011) 13 SCC",,,,,
383.,,,,,
8. Regard being had to the similitude in the present batch of writ petitions and the arguments advanced on behalf of the parties, the cases which have",,,,,
cropped up for consideration, can be summarised in three categories :",,,,,
I. The teachers who are working in the Model Schools and SOE by virtue of their posting in these schools but, have never undergone any selection",,,,,
process.,,,,,
II. The teachers/candidates who are posted in the Model Schools and SOE after their selection by the Selection Committee at District level in,,,,,
pursuant to the previous instructions, therefore they need not to undergo a fresh selection process, as they have produced excellent results and the",,,,,
object of the policy of the Government is already achieved.,,,,,
III. The writ petitioners - candidates who have participated Online selection process introduced by the impugned Instruction dated 3-7-2017, are",,,,,
aggrieved with the Circular or Instructions dated 24-7-2018 and 28-7-2018 whereby option for posting in Model Schools and SOE was changed to give,,,,,
option for their posting in Model Schools and SOE situated in the same District where they are posted at present and qualification of B.Ed. was,,,,,
prescribed for posting by counselling in addition to PG qualification keeping in view the provisions of Section 23 of the Right of Children to Free and,,,,,
Compulsory Education Act, 2009; NCTE Notification; and M.P. School Education Service (Teaching Cadre) Service Conditions & Recruitment",,,,,
Rules, 2018.",,,,,
9. In regard to the first category of cases, where the candidates are posted in the Model Schools and SOE without undergoing any kind of selection",,,,,
process, the learned Senior Counsel for the petitioners submitted that the petitioners are possessing the educational qualifications of PG and B.Ed., and",,,,,
while their postings in the Model Schools/SOE they have produced excellent results as well. He also referred to various documents to prove that the,,,,,
result produced by these teachers was in-between 90% to 100%. Since the Government has already achieved the optimum level of education by,,,,,
posting of these teachers, therefore, they cannot be compelled to undergo any further selection process. It is also contended that the Government has",,,,,
introduced the policy without any exercise, preparation and spadework. It is vehemently urged that some of the petitioners are at the verge of",,,,,
retirement and at this stage, shifting of these teachers to other schools may be prejudicial to the interest of the students and the Schools as well.",,,,,
10. In the second category of the writ petitions, the candidates-teachers who have already undergone the selection by the District Level Committee",,,,,
before their postings in the Model Schools/SOE, the learned Senior Counsel appearing for the petitioners submits that since they had already",,,,,
undergone selection process, thereof, they cannot be compelled to undergo a fresh Online selection/examination for their posting. In this batch of writ",,,,,
petitions the results produced by teachers in these schools is also referred. Learned senior counsel for the petitioners vehemently canvassed that by,,,,,
holding an Online examination by the respondents, no objective would be achieved, as the optimum level of education, is already achieved by the",,,,,
Government.,,,,,
11. In the third category of the writ petitions, the teachers-candidates have already participated in the Online Examination in pursuance of the",,,,,
Circulars dated 3-7-2017, 12-7-2017 and 24-7-2017, are aggrieved with the Instructions dated 24-7-2018 and 28-7-2018, whereby the condition",,,,,
regarding submissions of 20 options for postings of their choice in the schools was changed, by confining it to give their choice for posting in the Model",,,,,
Schools/SOE, situated within the districts where they are posted at present. Though the Circular/Letter dated 28-7-2018 is not challenged in the",,,,,
present writ petitions but they argued that prescription of B.Ed. qualification in addition to P.G. qualification for posting in the Model Schools/SOE is,,,,,
arbitrary, as it amounts to changing rule of game. The Circular dated 28-7-2018 was produced by the learned counsel for the State.",,,,,
12. Learned counsels appearing for the petitioners argued that the Instruction dated 24-7-2018 amounts to change of the rule of game. It is putforth,,,,,
that their choice could not have been restricted to the district itself and, therefore, they should have been permitted to give option for 20 schools â€"",,,,,
Model Schools/SOE in the entire State. The curtailment of submission of choice is arbitrary and violative of the Article 14 of the Constitution of India,,,,,
and, therefore, the impugned circulars/instructions are illegal, arbitrary and capricious.",,,,,
13. I do not find any force in the aforesaid contentions portrayed on behalf of the petitioners. The substantive posts of the writ petitioner are,,,,,
Lecturers, Shiksha Karmi, Grade-I, Varishtha Adhyapak, Pradhan Adhyapak, Samvida Shiksha Varg â€" I, Shikshak (UDT) and Adhyapak. The",,,,,
respondents have specifically pleaded that by posting of these teachers/writ petitioners in the Model Schools/ SOE, no special right is created in their",,,,,
favour and such teachers who are appointed in the Model Schools/SOE, will not get any special allowance or incentives. It is also submitted that the",,,,,
questioned Online examination will not affect the service conditions and avenue of promotion etc. of the teachers. The relevant part of the Circular,",,,,,
dated 3-7-2017 reads as under:,,,,,
“,sls f’k{kd ftudh vk;q 30 twu 2017 dks 60 o""kZ ;k mlls vf/kd gS] rFkk lafonk 'kkyk oxZ 3] lgk;d f’k{kd] f’k{kkdehZ oxZ 3] lgk;d",,,,,
v/;kid dks bl ijh{kk esa lfEefyr gksus dh vko’;drk ugha gSa tks f’k{kd orZeku esa bu 436 'kkykvksa esa v/;kiu dk;Z dj jgs gSa] mudk Hkh bl,,,,,
ijh{kk eas lfEefyr gksuk visf{kr gSA ;gka ;g Hkh Li""V fd;k tkrk gS fd ;g ijh{kk dsoy bu mRd`""V 'kkykvksa esa v/;kiu dk;Z gsrq ;ksX; f’k{kdksa",,,,,
ds p;u ds fy, vk;ksftr dh tk jgh gS] blds ifj.kke ls f’k{kdksa dh lsok 'krksZa ,oa inksUufr bR;kfn ij dksbZ izHkko ugha iM+sxkAâ€",,,,,
14. Learned counsel for the State also submitted that in some posting orders the word “on deputation†has been used, which is nothing but wrong",,,,,
dispel of the word “postingâ€, as teachers are not on deputation in the Model Schools/ SOE. He putforth that the State Government has issued a",,,,,
policy on 31st March 2002 regarding identification of the Schools of Excellence. Initially, monitoring of the Model Schools was being done by the",,,,,
Government of India, later the same is entrusted to the State Government. The schools have been upgraded as Schools of Excellence (SOE) and",,,,,
Model Schools in the State to cater the needs for better performing of the students, who are admitted in these Schools through a test, therefore, there",,,,,
is ardent need to post suitable teachers in order to impart quality education. They are not conferred any special benefits of allowance, incentives and",,,,,
promotion and their service conditions and promotional avenues remain intact. They are initially posted for two years and it is extendable for further,,,,,
one year, subject to recommendation of the Screening Committee and if a teacher further wishes to continue in such schools, he will have to",,,,,
participate in the Online Examination.,,,,,
15. The writ petitions were filed at different stages of the Online Examination. In some petitions interim order was passed allowing the writ petitioners,,,,,
to appear in the Online Examination, however, the same was made subject to final outcome of the petitions. The respondents have stated that 10380",,,,,
candidates had appeared in the examination and out of the existing 3744 teachers 1526 teachers who are already working in these schools, appeared",,,,,
in the Online Examination. Thus, the Online Examination, pursuant to the Circular dated 3-7-2017, has already taken place. In some places posting",,,,,
orders could not be issued because of the interim orders.,,,,,
16. Coming back to the challenge of the Circulars dated 3-7-2017, 12-7-2017 and 24-7-2018, it is luminescent that the teachers/candidates are required",,,,,
to appear in the Online Examination for their postings in the Model Schools/SOE. The said procedure does not contemplate any procedure for,,,,,
recruitment or appointment. The petitioners are already in-service and they are imparting education. The petitioners have failed to establish their any,,,,,
right to remain posted in the Model Schools/SOE. The transfer and posting of an employee is in the absolute domain of the employer. It is a pure,,,,,
administrative matter. It is settled law that transfer and posting is an incident of service and the courts cannot interfere with the transfer or posting,",,,,,
unless the same is in violation of any statutory rules. The Supreme Court in the case of State of U.P. and another vs. Siya Ram and another, (2004) 7",,,,,
SCC 405 held that an employee should be posted where it has to be decided by the employer and an employee has no right to claim posting at a,,,,,
particular place. The relevant extract reads as under:-,,,,,
“5. The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India had gone into the question as to whether the,,,,,
transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and,,,,,
circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be posted forever at any one,,,,,
particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place,,,,,
to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of",,,,,
transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or",,,,,
the tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision",,,,,
for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position",,,,,
Sr. No.,"Name of
posts","Minimum age
limit","Maximum
age limit","Educational
qualification",Remarks
(1),(2),(3),(4),(5),(6)
I.,"Ucch
Madhyamik
Shikshak",21 years,"As per
instruction
s
of General
Administr
ation
Departme
nt","Masters Degree in
the relevant
subject with
second division
and Bachelor of
Education (B.Ed.)
or its equivalent","1. Passed Teacher
Eligibility
Examination with the
percentage as
prescribed in sub rule
(5) of rule 11
2. The minimum
qualification for Ucch
Madhyamik Shikshak
(Sanskrit) of Sanskrit
school shall be
Acharya degree in
second division in
Sanskrit
literature/grammar etc.
from a recognized
institution/University.â€
Sr. No.,"Name of
posts","Minimum age
limit","Maximum
age limit","Educational
qualification",Remarks
(1),(2),(3),(4),(5),(6)
I.,"Ucch
Madhyamik
Shikshak",21 years,"As per
instruction
s
of General
Administr
ation
Departme
nt","Masters Degree in
the relevant
subject with
second division
and Bachelor of
Education (B.Ed.)
or its equivalent","1. Passed Teacher
Eligibility
Examination with the
percentage as
prescribed in sub rule
(5) of rule 11
2. The minimum
qualification for Ucch
Madhyamik Shikshak
(Sanskrit) of Sanskrit
school shall be
Acharya degree in
second division in
Sanskrit
literature/grammar etc.
from a recognized
institution/University.â€
24. The petitioners have relied on the judgment passed by a Co-ordinate Bench of this Court in the case of Abhishek Shrivastava (supra). The said,,,,,
judgment has been distinguished by another Co-ordinate Bench of this Court at Gwalior in the case of Vinod Singh Chauhan and another vs. State of,,,,,
M.P and others [W.P. No.21104/2018, dated 03-10-2018] holding that the said judgment is per incuriam. The relevant paras of the judgment read thus:",,,,,
“5. The stark distinguishing feature in the present case is that it does not involve any process of recruitment. The policy vide Annexure-P/2 neither,,,,,
involves direct recruitment nor promotion. The service conditions/benefits presently available to the Adhayapak/Varishtha Adhyapak shall not undergo,,,,,
any change on their posting at Model Schools of Excellence after being subjected to the process of Online test and counselling.,,,,,
5.1 The Model Schools of Excellence are created in every district to serve as harbinger of excellence in the field of school thereby becoming an,,,,,
example for other government schools in the district with ultimate objective of enhancing the quality eduction.,,,,,
5.2 The policy vide Annexure-P/2 dated 24-7-2018 conducts the process of Online test and counselling merely to hand-pick the most talented amongst,,,,,
the Varishtha Adhyapaks/Adhyapaks to man the Model School of Excellence in each district to take the campaign of excellence in school education to,,,,,
new heights.,,,,,
6. From the above discussion, this Court has no manner of doubt that the policy vide Annexure-P/2 or P/1 is undoubtedly a policy of “postingâ€",,,,,
with no element of recruitment involved and therefore the reliance placed by the Co-ordinate Bench in W.P. No.17591/2018 upon the judgment of,,,,,
Apex Court in K. Manjusree Vs. State of Andhra Pradesh and aother, (2008) 3SCC 512 and Anil Bhatt and others Vs. State of M.P. and others,",,,,,
2012 (2) MPLJ 82 is misplaced.,,,,,
7. Accordingly, this Court with utmost humility at its command is compelled to hold that judgment of the Co-ordinate Bench passed on 12-9-2018 is",,,,,
rendered by misreading the law laid down by Apex Court in K. Manjusree Vs. State of Andhra Pradesh and another, (2008) 3 SCC 512 and is thus",,,,,
per incuriam and therefore, is denuded of its presidential value thereby relieving this Court of its obligation to follow the same.",,,,,
8. Consequently, present petition deserves to be and is therefore dismissed at the very outset.â€",,,,,
25. In the case of Suresh Singh Sikarwar (supra) a Co-ordinate Bench of this Court considering the Instructions dated 24-7-2018 held that the said,,,,,
Instructions are not arbitrary, as the post of Teacher is a district cadre and, therefore, the respondents have rightly curtailed the choice of posting to",,,,,
the district where the candidate is already posted. In view of the aforesaid provisions, this Court does not find any illegality or arbitrariness in giving",,,,,
preference to the candidates, who are having B.Ed. qualification in addition to Post Graduation.",,,,,
26. In regard to interference in policy matters, the Apex Court in the case of Tamil Nadu Education Department Ministerial and General Subordinate",,,,,
Services Association and others (supra) ruled that in the matter of policy-decisions regarding servicing conditions, the Courts cannot adopt",,,,,
mathematical precision in administrative actions not being possible and cannot analyse minute administrative details.,,,,,
27. In the case of Ram Lubhaya Bagga and others (supra) the Supreme Court has held that judicial review in policy matter which is wisdom of the,,,,,
policy, cannot be judicially scrutinised, though the Court can consider whether the policy is arbitrary or violative of law. Same view has been reiterated",,,,,
in the cases of Himachal Pradesh Nizi Vyavsayik Prashikshan Kendra Sangh (supra) and Ashok Kumar Dangi and others (supra).,,,,,
28. In view of the aforesaid submissions, I do not find any illegality or impropriety in the impugned Circulars/Instructions issued by the State",,,,,
Government from time to time regarding Online examination for posting of teachers in the Model Schools/SOE, for the following reasons :",,,,,
(i) The petitioners do not have any rights to continue their postings in the Model Schools/SOE, as they have failed to establish any statutory right for",,,,,
being posted in the aforesaid Schools.,,,,,
(ii) The substantive post of the petitioners is teacher under different nomenclatures and they are engaged for imparting education in the schools. There,,,,,
is no conditions either in the appointment letter or in the Service Rules for their postings in the Model Schools or SOE only. Therefore, there is no",,,,,
infringement of any fundamental rights or statutory rights.,,,,,
(iii) Service conditions of the petitioners are not adversely affected by their non-selection in the Online examination, as it is clarified in the Instructions",,,,,
dated 3-7-2017 itself and no special allowance or incentives are attached to the said postings. Therefore, their contention that non-selection and",,,,,
transfer from the Model Schools/ SOE would be detrimental to their interest, has no force. Further, the decision cannot be construed as punitive or",,,,,
stigmatic.,,,,,
(iv) Contention of the learned counsel appearing for the petitioners that they are being equated with the teachers working in the lower cadres and with,,,,,
the unequals can also not be appreciated, as by the Online examination, the selection is made only for the purpose of posting and not for any",,,,,
appointment or promotion. Transfer and posting are administrative matters and are purely within the domain of the employer.,,,,,
(v) Contention of the learned counsel for the petitioners that Rule of Game has been changed after commencement of the Online Examination, can",,,,,
also not be appreciated, as the respondents have taken a policy-decision in order to introduce the Online Examination only for the purpose of selection",,,,,
for posting in the Model Schools/SOE, which does not consist any process of recruitment or selection.",,,,,
(vi) Requirement of B.Ed. qualification for posting in Model Schools and SOE at the time of counselling, is in consonance with the provisions enshrined",,,,,
in the National Council for Teacher Education Act, 1993; The Right of Children to Free and Compulsory Education Act, 2009; and the Madhya",,,,,
Pradesh School Education Service (Teaching Cadre), Service Conditions and Recruitment Rules, 2018.",,,,,
(vii) In addition to the aforesaid, the scope of interference of the Court in the policy-decisions of the Government, is very limited and the petitioners",,,,,
could not establish any arbitrariness or malifide.,,,,,
29. Ex-consequenti, the writ petitions being sans merits, are dismissed. There shall be no order as to costs.",,,,,
