@JUDGMENTTAG-ORDER
Prakash Shrivastava, J.@mdashThis order will govern the disposal of W.P. Nos. 10072/2012, 4126/2013, 3977/2013, 2528/2013, 2530/2013, 2645/2013, 2676/2013, 2758/2013, 2857/2013, 2896/2013, 2898/2013, 2899/2013, 2900/2013, 2901/2013, 2902/2013, 2926/2013, 2928/2013, 2929/2013, 2990/2013, 3200/2013, 3526/2013, 3260/2013, 3263/2013, 3267/2013, 3272/2013, 3274/2013, 3275/2013, 3276/2013, 3290/2013, 3410/2013, 3412/2013, 3623/2013, 3626/2013, 3629/2013, 3630/2013, 3680/2013, 3690/2013, 3699/2013, 3721/2013, 3731/2013, 3732/2013, 3733/2013, 3734/2013, 3735/2013, 3736/2013, 3737/2013, 3738/2013, 3739/2013, 3740/2013, 3741/2013, 3742/2013, 3743/2013, 3744/2013, 3745/2013, 3746/2013, 3747/2013, 3748/2013, 3925/2013, 3979/2013, 4001/2013, 4002/2013, 4018/2013, 4021/2013, 4023/2013, 4024/2013, 4031/2013, 4032/2013, 4040/2013, 4048/2013, 4049/2013, 4051/2013, 4052/2013, 4054/2013, 4055/2013, 4056/2013, 4059/2013, 4063/2013, 4070/2013, 4071/2013, 4072/2013, 4073/2013, 4074/2013, 4075/2013, 4077/2013, 4078/2013, 4079/2013, 4082/2013, 4083/2013, 4084/2013, 4085/2013, 4093/2013, 4099/2013, 4100/2013, 4102/2013, 4103/2013, 4106/2013, 4108/2013, 4110/2013, 4115/2013, 4116/2013, 4117/2013, 4118/2013, 4120/2013, 4122/2013, 4123/2013, 4124/2013, 4125/2013, 4127/2013, 4128/2013, 4129/2013, 4132/2013, 4134/2013, 4139/2013, 4141/2013, 4146/2013, 4147/2013, 4148/2013, 4149/2013, 4150/2013, 4151/2013, 4152/2013, 4153/2013, 4154/2013, 4155/2013, 4156/2013, 4157/2013, 4158/2013, 4159/2013, 4160/2013, 4161/2013, 4162/2013, 4163/2013, 4164/2013, 4172/2013, 4176/2013, 4179/2013, 4181/2013, 4188/2013, 4189/2013, 4190/2013, 4193/2013, 4196/2013, 4197/2013, 4198/2013, 4202/2013, 4206/2013, 4221/2013, 4227/2013, 4264/2013, 4265/2013, 4268/2013, 4307/2013, 4357/2013, 4386/2013, 4387/2013, 4388/2013, 4389/2013, 4398/2013, 4412/2013, 4433/2013, 4561/2013, 4572/2013, 4580/2013, 4277/2013, 3120/2013, 3321/2013, 3722/2013, 3723/2013, 3724/2013, 3725/2013, 3728/2013, 3729/2013, 3730/2013, 3753/2013, 3762/2013, 3796/2013, 3831/2013, 3832/2013, 3834/2013, 3835/2013, 3836/2013, 3837/2013, 3838/2013, 3919/2013, 3921/2013, 3922/2013, 3931/2013, 3933/2013, 3934/2013, 3935/2013, 3936/2013, 3947/2013, 3961/2013, 3962/2013, 3963/2013, 3964/2013, 3975/2013, 3976/2013, 3982/2013, 3984/2013, 3985/2013, 3987/2013, 3988/2013, 3989/2013, 3996/2013, 4236/2013, 4244/2013, 4270/2013, 4275/2013, 4290/2013, 4291/2013, 4292/2013, 4313/2013, 4356/2013, 4373/2013, 4446/2013, 4460/2013, 4461/2013, 4482/2013, 4487/2013, 4488/2013, 4489/2013, 4490/2013, 4491/2013, 4492/2013, 4493/2013, 4494/2013, 4495/2013, 4498/2013, 4499/2013, 4702/2013, 4703/2013, 4713/2013, 4719/2013, 4720/2013, 4658/2013, 4659/2013, 4660/2013, 4661/2013, 4662/2013, 4663/2013, 4664/2013, 4665/2013, 4666/2013, 4668/2013, 4679/2013, 4683/2013, 4691/2013, 4694/2013, 4698/2013, 4699/2013, 10040/2012, 5412/2013, 5431/2013, 5432/2013, 5559/2013, 5560/2013, 5561/2013, 5562/2013, 5925/2013, 5924/2013, 5873/2013, 5874/2013, 5875/2013, 5876/2013, 5878/2013, 5879/2013, 5880/2013, 5768/2013, 5872/2013, 5932/2013, 5796/2013, 3563/2013, 5794/2013, 5793/2013, 5956/2013, 6134/2013, 6135/2013, 6136/2013, 6006/2013, 6010/2013, 6007/2013, 5015/2013, 5013/2013, 5720/2013, 5717/2013, 5711/2013, 5708/2013, 5702/2013, 5662/2013, 5520/2013, 5525/2013, 5533/2013, 5430/2013, 4672/2013, 4500/2013, 5594/2013, 5595/2013, 5660/2013, 5009/2013, 4807/2013, 5735/2013 and 5795/2013. It is stated by the counsel for both the parties that all these writ petitions involve same issue on the similar fact situation.
1-A. These writ petitions relate to the recruitment to the post of Samvida Shala Shikshak Grade I, Grade II and Grade III (for short "Samvida Shala Shikshak"). Since respondents have not considered the petitioners for appointment to the post of Samvida Shala Shikshak on the ground that the petitioners do not possess the requisite minimum qualification prescribed for the post, therefore, the petitioners have approached this Court.
In brief, the advertisements were issued by the M.P. Professional Examination Board inviting applications for recruitment to the post of Samvida Shala Shikshak. For Samvida Shala Shikshak grade I the last date for submission of online application was 7-10-2011, for grade II, 31-10-2011 and for grade III, 27-10-2011. The examination was to be conducted for grade I on 27-11-2010, for grade II on 22-1-2012 and for grade III on 18-12-2011. Petitioners had submitted the online applications in pursuance to the advertisement and had appeared in the written examination which was conducted by the Board. The result and revised result for grade I were declared on 21-1-2012 and 4-8-2012 respectively, for grade II on 3-7-2012 and 4-8-2012 and for grade III on 25-4-2012 and on 4-8-2012 (revised) and on 10-4-2013 (second revised). The candidates were thereafter called for verification of the documents and subsequently list of eligible candidates was declared. Since the petitioners'' names were not included in the list of the eligible candidates, therefore, they have approached this Court.
2. The first contention raised by the counsel for the petitioners is that the petitioners possess the requisite qualification in terms of the applicable rules, but subsequent to the submission of the online application form and subsequent to the written examination, by the administrative instructions dated 15-2-2013 the minimum qualification has been altered.
3. The stand of the State is that the screening has been done strictly in accordance with the applicable rules, and the circular dated 15-2-2013 is nothing but the reiteration of the requirement of the Rules.
4. Having heard the learned counsel for the parties and on the perusal of the record, it is found that the State Government had framed the Samvida Shala Shikshak (Employment and Conditions of Contract) Rules, 2005 (for short "Rules of 2005") in exercise of the powers conferred by section 95(1) read with section 70(2) of the M.P. Panchayat Raj Avam Gram Swarajya Adhiniyam, 1993. The Rule 6 thereof provides for selection and method of employment of Samvida Shala Shikshak grade I, grade II and grade III. These rules also provide for the manner and procedure of selection as well as the period of contract employment etc. The Schedule II to the Rules provides for age, qualification, disqualification etc. for Samvida Shala Shikshak. Column 7 of the said schedule contains the minimum qualification which is required for the each grade of Samvida Shala Shikshak. The Schedule II of Rules of 2005 has been amended by the Notification dated 27-6-2011 and by way of the said amendment following minimum qualifications have been prescribed for Samvida Shala Shikshak grade I, grade II and grade III:--
3. In Schedule II,--
(i) In serial number 1, in column (5), for the existing entry, the following entry shall be substituted, namely:--
Masters Degree in the relevant subject with Bachelor of Education (B.Ed.) or its equivalent.;
(ii) In serial number 2, in column (5), for the existing entry, the following entries shall be substituted, namely:--
Bachelor Degree in the relevant subject and 2 years Diploma in Elementary Education or its equivalent;
OR
Bachelor Degree in the relevant subject with at least 50% marks and Bachelor in Education (B.Ed.).
OR
Bachelor Degree in the relevant subject with at least 45% marks and Bachelor in Education (B.Ed.) in accordance with the NCTE (Recognition Norms and Procedure) Regulations, 2002.
OR
Higher Secondary Certificate Examination with at least 50% marks and Bachelor in Elementary Education (B.El.Ed.).
OR
Higher Secondary Certificate Examination with at least 50% marks and 4 years Bachelor Degree in the relevant subject (B.A.B.Ed./B.Sc.Ed.)
OR
Bachelor Degree in the relevant subject with at least 50% marks and Bachelor in Education (Special education).;
(iii) in serial number 3,--
(a) in column (5) for the existing entry, the following entries shall be substituted, namely:--
Higher Secondary Certificate Examination with at least 50% marks (or its equivalent) and 2 years Diploma in Elementary Education.
OR
Higher Secondary Certificate Examination with at least 45% marks (or its equivalent) and 2 years Diploma in Elementary Education in accordance with the NCTE (Recognition Norms and Procedure) Regulations, 2002.
OR
Higher Secondary Certificate Examination with at least 50% marks (or its equivalent) and 4 years Bachelor in Elementary Education (B.El.Ed.).
OR
Higher Secondary Certificate Examination with at least 50% marks (or its equivalent) and 2 years Diploma in Education (Special Education).;
(b) In column (7), after item 3, the following item shall be added, namely:--
4. The minimum qualification for Samvida Shala Shikshak Grade-3 (Laboratory) shall be Higher Secondary Certificate Examination with at least 50% marks with Science subjects or equivalent.;
(iv) under the heading "Note (a) Qualification",--
(a) clause (1) shall be omitted;
(b) for clause (4), the following clause shall be substituted, namely:--
(4) The Honorary Teachers appointed for Government schools and part time teacher of vocations Education shall be given fifteen years relaxation in maximum age limit of 35 years:
Provided that part time teacher of Vocational education whose contract was terminated due to his work being found unsatisfactory will not be entitled for this relaxation.;
(c) After clause (8), the following clauses shall be added, namely:--
(9) Widow and Divorcee candidate shall have five years relaxation in maximum age limit in addition to other relaxation.
(10) The State Government shall appoint the persons as Samvida Shala Shikshak possessing minimum qualification as laid down in column (5) of Schedule-II. If trained persons are not available in sufficient number the State Government may appoint untrained persons on the post of Samvida Shala Shikshak as per provision of the rules after due Notification of the Central Government u/s 23(2) of the Right of Children to Free and Compulsory Education Act, 2009 (No. 35 of 2009).
(11) The candidates who have worked as Guest Teacher in Government School for minimum three educational sessions, shall be entitled to five years relaxation in maximum age limit;
(v) under the heading "Note (b) Disqualification", clause (7) shall be omitted.
5. In the above amendment, eligibility conditions in serial No. 1 relates to Samvida Shala Shikshak grade I, serial No. 2 relates to Samvida Shala Shikshak grade II and serial No. 3 relates to Samvida Shala Shikshak grade III. It is worth noting that the aforesaid amendment was incorporated prior to the issuance of the advertisement for recruitment and submission of applications by the petitioners.
6. Some of the clauses of above amendment require B.Ed./D.Ed. in accordance with the NCTE (Recognition, Norms and Procedure) Regulations, 2002 (for short "2002 Regulation") which have been framed in exercise of the powers conferred by the NCTE Act and which prescribe the minimum eligibility condition for Elementary Teacher Education Programme. The minimum eligibility originally prescribed in 2002 Regulation has been amended vide Notification dated 30-11-2006.
7. The petitioners have attacked the circular dated 15-2-2013 raising the plea that by the said circular the prescribed minimum qualification under the Rules has been changed but by reading the said circular along with Rules of 2005 as amended on 27-6-2011 and the NCTE Regulations of 2002 as amended by Notification dated 30-11-2006, it is found that the said circular is nothing but reiteration of the eligibility conditions which have been prescribed in the amended Rules of 2005. Thus the argument of the petitioners that by the circular dated 15-2-2013 the prescribed eligibility conditions have been changed subsequent to the issuance of advertisement and submission of application form, is devoid of any merit and is accordingly rejected.
8. Counsel for the petitioners while raising a challenge to the circular dated 15-2-2013 have also raised the plea that the administrative instructions will not prevail over the statutory rules. The said argument has no force in view of the conclusion already reached by this Court that the Circular dated 15-2-2013 is not in conflict with the statutory rules but it is in conformity with the same.
9. Learned counsel appearing for the petitioners have next contended that the Central Government exercising the powers conferred by Right of Children to Free and Compulsory Education Act, 2009 (for short "Act of 2009") has issued the Notifications dated 23-8-2010 and 25-8-2010 (as amended by the Notification dated 29-7-2011) prescribing the minimum qualification for the person eligible for appointment as teacher in Class 1 to 8 in a school referred to in section 2(n) of the Act of 2009, therefore, the State is precluded from providing any other minimum qualification. Such a submission also cannot be accepted because the petitioners have not challenged the validity of amended Rules of 2005, which have the statutory force having been framed in exercise of power conferred by the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993. Even otherwise, it is found that by the above Notifications issued under Act of 2009 the minimum qualification have been prescribed and none of the qualification prescribed by the amended Rules of 2005 is lower than the said minimum qualifications. In substance the qualifications which have been prescribed in the Rules of 2005 are in conformity with the minimum qualifications which have been laid down by the Notification issued under the Act of 2009.
10. Learned counsel appearing for the petitioners have further contended that once the petitioners were permitted to participate in the selection process and they have qualified the written examination, then the State is estopped from excluding them from the selection process on the ground that they do not possess the requisite qualification. Learned counsel for the State has pointed out the selection procedure and has disclosed that along with the online application forms, which were submitted by the petitioners in pursuance to the advertisement, no documents were required to be submitted. The petitioners were allowed to appear in the written examination on the basis of their online application forms and after the declaration of result of written examination, their original documents were scrutinized and those who did not possess the requisite qualification, their names have not been included in the list of the eligible candidates. Thus, it is found that the plea of estoppel raised by the petitioners has no substance. Even otherwise, the petitioners who do not possess the requisite minimum qualification, have no right of appointment on the post in question.
11. In the matter of
6. I have considered the respective submissions made by learned counsel for the parties. Madhya Pradesh Samvida Shala Shikshak (Employment and Conditions of Contract) Rules, 2005 came into force with effect from 6-5-2005. Thereafter the Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009 which came into force w.e.f. 26-8-2009. Section 23(1) of the aforesaid Act provides that any person possessing such minimum qualifications as laid down by an academic authority, authorised by the Central Government by Notification, shall be eligible for appointment as a teacher. u/s 23(2) of the 2009 Act, the National Council for Teacher Education has been authorised by the Central Government. By Notification dated 23-8-2010 the National Council for Teacher Education in exercise of power u/s 23(1) of the 2009 Act prescribed the qualifications. By an order dated 11-2-2011 the National Council for Teacher Education issued guidelines for conducting the Teacher Eligibility Test. The Government submitted a proposal to the Central Government on 3-5-2011 u/s 23(2) of the 2009 Act. Thereafter the Central Government u/s 23(2) relaxed the minimum qualifications prescribed by the National Council of Teacher Education u/s 23(1) of the 2009 Act vide Notification dated 25-8-2010 in respect of the State of Madhya Pradesh and the requirement of possessing two year Diploma in Elementary Education was relaxed. The State Government thereafter amended the 2005 Rules by Notification dated 27-6-2011 and prescribed the eligibility conditions for recruitment on the post of Samvida Shala Shikshak Grade-I, II and III in conformity with the conditions prescribed by the National Council for Teacher Education as required under the Notification dated 21-11-2011 issued by the Central Government u/s 23(2) of the 2009 Act. Thereafter an advertisement was issued for Teacher Eligibility Test by which the applications were invited from 27-9-2011 to 27-10-2011. The examination was held on 22-1-2012 and the result was declared on 31-7-2012 which was modified on 4-8-2012. Thus, it is apparent that the Rules were amended prior to issuance of the advertisement by Notification dated 27-6-2011. The advertisement itself was issued in accordance with the amended Rules. Therefore, the contention of learned counsel for the petitioners that after the process of recruitment, the Rules have been amended and eligibility criteria has been changed, cannot be accepted.
12. Somewhat similar contentions were raised by the similarly situated petitioners before the Principal Seat at Jabalpur in W.P. No. 6559/2013 in the matter of Radha Thakur vs. State of M.P. and others, decided on 26-4-2013 and the learned Single Judge at Jabalpur rejecting the said contention has held as under:--
The controversy involved in the writ petition is with respect to the qualification for appointment on the post of Samvida Shala Shikshak. The issue in this respect has been considered by this Court in various writ petitions, namely, W.P. No. 6686/2013, Ashish Kumar Soni vs. State of M.P. and others, decided on 15-4-2013 and W.P. No. 6945/2013, Vinod Morle vs. State of M.P. and others, decided on 18-4-2013. This Court has further considered whether the essential qualification prescribed in case of Samvida Shala Shikshak could be relaxed or not and such a consideration has been done in W.P. No. 6646/2013, Anand Patel vs. State of M.P. and others, decided on 18-4-2013.
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This Court after dealing with such qualifications prescribed as also various provisions of relevant laws has reached to the conclusion that those who are not fulfilling the qualification prescribed under the amended Rules, are not to be called for counselling and no such writ, direction or mandamus could be issued to the respondents. The writ petitions have been dismissed by this Court following the law laid down in several cases by the Apex Court, namely,
In view of the aforesaid, while upholding the action of respondents, no case is made out to grant any relief to the petitioner in the present case. The writ petition fails and is hereby dismissed.
13. In the matte of Ashish Kumar Soni vs. State of M.P. in W.P. No. 6686/2013, vide order dated 15-4-2013 by taking note of the judgment of the Supreme Court in the matter of
14. In view of the aforesaid analysis, it is held that the petitioners who were not holding the requisite qualification which have been prescribed in the Rules, have rightly been found ineligible for appointment to the post in question.
15. The counsel for the petitioners have placed reliance upon the Division Bench judgment of the Rajasthan High Court dated 30-5-2011 passed in Division Bench (Civil) Writ Petition No. 3964/2011, Sushil Sompura and others vs. State (Education) and others and other connected matters, but the said judgment is of no help to the petitioners since that was a matter where the Notification dated 23-8-2010 issued by the NCTE was under challenge, and in that case the counsel for NCTE had recorded his concession in respect of the prescribed qualification.
16. In some of the cases the petitioners have also raised the plea that they have obtained the requisite diploma/degree from other university such as Manipal university, where no minimum marks were prescribed for admission, therefore, the condition of minimum marks should not be imposed on them. Such an argument cannot be accepted for the simple reason that the State by taking into account the provisions of the Act of 2009, the Regulations under the NCTE Act and the Panchayat Act was competent to prescribe the minimum eligibility condition for recruitment, and for recruitment to the post in question it is necessary for the candidate to satisfy the prescribed minimum eligibility conditions.
17. In some of the matters the petitioners have advanced the argument that the marks obtained by them at the graduation/diploma level should be round off. In support of their submission they have placed reliance upon the Division Bench judgment of this Court in the matter of
18. In some of the petitions the petitioners have also raised the plea that they are the green card holder, therefore, they are entitled for relaxation of marks in the final merit list. Learned counsel for the parties have failed to point out any provision in the Act or the Rules providing for such a relaxation. In the present case the recruitment is under the Rules of 2005 and in these Rules there is no provision for granting relaxation on the ground of holding the green card. Thus, there is substance in the plea of the counsel for the State that for want of the relevant provision in the statutory Rules, the relaxation to the green card holders cannot be granted.
19. Some of the petitioners have also raised the issue that they had appeared in the D.Ed. examination but since the result were declared by Board on 20-3-2013, therefore, they could not produce the D.Ed. certificate at the time of verification of certificates by the respondents, therefore, they have been declared ineligible, hence the respondents should be directed to consider the D.Ed. certificate of the petitioners. The counsel for the respondents have pointed out that these are the matters relating to those candidates who had appeared in the D.Ed. examination held in December, 2012 i.e. subsequent to the last date of filling up the application form. Since on the relevant dates these candidates had not appeared in the D.Ed. examination and were not having the requisite D.Ed. degree, therefore, they have rightly been found ineligible by the respondents.
20. Some of the petitioners have also raised the issue that since they belong to SC/ST/OBC/PH category, therefore, in terms of the Notification dated 29-7-2011 they are entitled to 5% relaxation in the marks obtained in the Higher Secondary or in requisite degree/diploma. A perusal of the Notification dated 29-7-2011 reveals that 5% relaxation to the candidates of SC/ST/OBC/PH is to be given in the qualifying marks. By the amendment dated 27-6-2011 Rule 6(5) of the Rules of 2005 has been amended and minimum percentage marks to qualify in the eligibility examination for SC/ST/OBC/PH has been reduced to 50% as against others for whom it is 60%. Thus the relaxation in the percentage of marks to qualify the eligibility examination has already been granted. The counsel for the petitioners have failed to point out any provision in the Rules of 2005 prescribing relaxation in the percentage of marks obtained by them in the Higher Secondary or degree/diploma. Thus such a submission cannot be accepted.
21. In W.P. No. 4070/2013, W.P. No. 4071/2013, W.P. No. 4572/2013, W.P. No. 5796/2013 and W.P. No. 5431/2013 an issue has also been raised that though the petitioners possess all the requisite qualification as has been mentioned above but their names have not been included in the eligibility list on account of the incorrect verification of their documents. In those cases it is the duty of the respondents to re-examine the necessary documents and in case if it is found that they were possessing the necessary minimum qualification on the cut off date, then their candidature is required to be considered in accordance with law.
22. Accordingly W.P. No. 4070/2013, W.P. No. 4071/2013, W.P. No. 4572/2013, W.P. No. 5796/2013 and W.P. No. 5431/2013 are disposed off with direction that these petitioners will be at liberty to submit the representation along with all the relevant documents as per the requirement of the Rule showing their eligibility to the District Education Officer of the concerned district within 3 weeks from today. The District Education Officer will scrutinize their applications in accordance with the Rules and if it is found that on the relevant date the petitioner was having all the requisite qualification, then he would be considered for appointment in accordance with the Rules. Let this exercise be done by the District Education Officer within 8 weeks from the date of receipt of the representation.
23. All other writ petitions are accordingly dismissed. Singed order be kept in the file of W.P. No. 10072/2012 and a copy thereof be placed in the file of connected writ petitions.
