HIGH COURT OF UTTARANCHAL AT NAINITAL. (Chapter VIII Rule 32 (2) (b) Description of the Case. Special Appeal No. 90 of 2006 Date of Decision : 18th December, 2006 A.F.R. (Approved for reporting) ________________ Not approved for reporting. Initial of Judge. Date : 18.12.2006 Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. IN THE HIGH COURT OF UTTARANCHAL, AT NAINITAL Special Appeal No. 90 of 2006 1. Shailendra Singh S/o Sri Khem Singh R/O Village-Niwarmundi, Post Office – Jaspur District – Udham Singh Nagar 2. Atul Kumar S/O Sri Rajesh Singh R/O Village-Niwarmundi, Post Office – Jaspur District – Udham Singh Nagar 3. Rajneesh Singh Chauhan S/o Ganesh Singh R/O Mohalla Bhoop Singh, Chamman Bagh Post Office – Jaspur District – Udham Singh Nagar 4. Jitendra Singh S/o Sri Dharampal Singh Village and Post Nagar Panchayat Mahuadabra Tehsil – Jaspur, District – Udham Singh Nagar 5. Atal Bihari S/o Sri Hazari Singh Opp. Govt. Hospital Mohalla Bhoop Singh, Jaspur District- Udham Singh Nagar …..Appellants Versus 1. State of Uttaranchal through Secretary Education, Dehradun 2. Assistant Director Education, Nainital 3. Zila Basic Shiksha Adhikari District Champawat 4. Principal Zila Shiksha and Parshikshan Sansthan Didihat Pithoragarh 5. Additional Director, S.C.E.R.T., Narendra Nagar, Tehri Garhwal 6. Union of India through Secretary Ministry of Human Resources & Development (Higher Education) New Delhi 7. Hindi Sahitya Sammelan, through its Chairman Prayag, Allahabad (U.P.) 8. University Grant Commission through its Chairman, New Delhi 9. Munni Upreti W/o Ramesh Chandra Upreti Village Idakote Tehsil Champawat, District – Champawat … Respondents Mr. S. Dhulia, learned senior counsel with Mr. D.S. Patni, Advocate for the appellants. Mr. N.C. Gupta, learned standing counsel for respondent Nos. 1 to 5. Mr. M.C. Kandpal, learned senior counsel with Mr. S.S. Chaudhary, Advocate for the respondent No.7. Mr. Syed Naddim, learned counsel for the respondent No. 9 None for respondent Nos.6 and 8. JUDGMENT Coram : Hon’ble Rajeev Gupta, C.J. Hon’ble J.C.S. Rawat, J. Per Hon’ble J.C.S. Rawat, J. 1. This Special appeal under Rule 5 Chapter VIII of the High Court Rules has been filed against the judgment and order dated 19.06.2006 passed by the learned Single Judge of this Court in Writ Petition No. 51(S/S)/2005, Munni Upreti (Munni Pathak) Vs. State of Uttaranchal and others whereby the learned Single Judge has allowed the writ petition. 2. A writ petition bearing No. 51 of 2005 (S/S) was filed before the learned Single Judge by the writ petitioner-Munni Upreti for the following reliefs:- i. To issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to consider the candidature of the petitioner for the training of Special B.T.C. course as she is the permanent resident of Uttaranchal and possessing the requisite qualification according to the advertisement dated 05.08.2004 (annexure No.6) ii. To issue any writ order or direction which this Hon’ble Court may deem fit and proper to the facts and circumstances of this case. iii. To award the cost in favour of the petitioner. 3. The writ petitioner-Munni Upreti (respondent No.9 in this appeal) after completion of graduation and post graduation, passed Shiksha Visharad from Hind Sahitya Sammellan Allahabad (Hindi University) in the year 1993. It is alleged that the Shiksha Visharad is equivalent to B.Ed Syllabus of the University. An advertisement was published in the newspaper on 05.08.2004 by the respondent No.4-Principal Zila Shiksha and Parshikshan Sansthan, Didihat, Pithoragarh inviting the applications for Special B.T.C. and the minimum qualification required for the B.T.C. is graduation degree with B.Ed./L.T. Degree or B.Ed. by the correspondence from recognized university. The petitioner fulfilled all the conditions required in the advertisement published in the newspaper. The petitioner moved the application to the respondent No.4-the Principal Zila Shiksha and Parshikshan Sansthan, Didihat, Pithoragarh before the last date of submission of the application. But the respondent No.4-the Principal Zila Shiksha and Parshikshan Sansthan, Didihat, Pithoragarh did not consider the candidature of the writ petitioner-Muni Upreti on the ground that she passed her Shiksha Visharad (B.Ed) Examination from the Hind Sahitya Sammelan, Allahabad. Feeling aggrieved by this, the petitioner filed a writ petition before this court. 4. A counter affidavit has been filed by the respondents wherein it has been pleaded that Shiksha Visharad had not been recognized by the National council for Teacher Education (hereinafter referred as NCTE), as such, the same cannot be termed as an equivalent qualification mentioned in the advertisement and the writ petitioner-Munni Upreti is not entitled to be selected in Special B.T.C 5. After hearing the parties, the learned Single Judge allowed the petition on 19.09.2006 and held that the petitioner is entitled to be considered for special B.T.C. course provided the recognition and verification is obtained from the concerned University/State Govt. or the institution concerned regarding her degree. 6. Feeling aggrieved by the judgment and order of the learned Single Judge, the present special appeal has been preferred by the appellants. 7. Heard learned counsel for the parties and perused the record. 8. The main controversy arises in this appeal as to whether the degree of Shiksha Visharad awarded by the Hindi Sahitya Sammellan Allahabad is to be treated as B.Ed degree for the admission in the B.T.C. Training Course. 9. Muni Upreti-writ petitioner (respondent No.-9 in appeal) after passing the graduation and post graduation, passed Shiksha Visharad from Hindi Sahitya Sammellan Allahabad before 1995. The impugned advertisement reads as follows:- ^^ vfuok;Z ;ksX;rk,a& 1- “kSf{kd & fof/k ekU;rk izkIr fo ofo|ky; ls LukrdA 2- izf k{k.k%& bl gsrq mRrjkapy@mRrjizns k dh ekU;rk izkIr laLFkk }kjk laLFkkxr ijh{kkFkhZ;ksa ds :Ik esa ch0,M0 @ ,y0Vh0 vFkok i=kpkj ds ek/;e ls ch0,M0 gsrq ekU;rk izkIr fo ofo|k;y ls ch0,M0 mRrh.kZ fd;k x;k gksA ftUgksaus laLd`r fo ofo|ky; ls f k{kk “kkL=h dh mikf/k yh gks ,oa f k{kk “kkL=h dh ijh{kk laLFkkxr ijh{kkFkhZ ds :Ik esa mRrh.kZ dh gks os Hkh vgZ gksaxsA mRrjizns k ljdkj }kjk ekU;rk izkIr ,slh laLFkkvksa tks jk’Vªh; v/;kid izf k{k.k ifj’kn }kjk ekU;rk izkIr gksa] ls “kkjhfjd f k{kk izf k{k.k ;Fkk ch0ih0,M0 Mh0ih0,M0] lh0ih0,M0 vH;kFkhZ Hkh vgZ le>s tk,axsA blds lEcU/k esa mRrj izns k “kklu }kjk ekU; dh xbZ vof/k ¼o’kZ 1997½ rd ds ekU; dh xbZ laLFkkvks ls mRrh.kZ laLFkkxr vH;fFkZ;ks dks gh vgZ le>k tk,xkA 3- vk;q lhek%& vH;kFkhZ dh vk;q 1 tqykbZ] 2004 dks 18 ls de o 40 ls vf/kd u gksA vkfjf{kr oXkZ ds vH;fFkZ;ksa dks vf/kdre vk;q lhek esa NwV iznku dh tk,xh tks bl laca/k eas izpfyr “kklukns kks ds vuqlkj vuqeU; gksxhA 4- vkosnu “kqYd%& js[kakfdr iksLVy vkMZj @ cSad M~kQ~V ds :Ik ds :Ik es 100@& ¼lkS :i;s ek=½ ,l0lh0@,l0Vh0 ds fy, :0 40@& ¼pkyhl :i;s ek=½ “kqYd fy;k tk;sxk] tks izkpk;Z ftyk f k{kk ,oa izf k{k/k laLFkku MhMhgkV] fiFkkSjkx<+ ds in uke ls ns; gksaxkA 5- vafre frfFk%& bPNqd vH;kFkhZ fu/kkZfjr izk:i ij QksVks;qDr vkosnu i= ij] irk fy[k gqvk fyQkik jftLVªh VdV ;qDr ¼25 X 10 laseh½ leLr kSf{kd o izf k{k.k izek.ki= vad i=ksa rFkk vU; izek.ki=ks dks Loizekf.kr izfr;ksa lfgr jftLVMZ Mkd ds vkpk;Z] ftyk f k{kk ,oa izf k{k.k LkaLFkku MhMhgkV fiFkkSjkx<+ ds irs ij foKfIr izdk ku ds 15 fnu ds Hkhrj vo ; igqWp tk,aA blds ckn ds vosnu i=ks ij dksbZ fopku ugh fd;k tk;sxkA 10. Perusal of the aforesaid advertisement reveals that the candidates, who possessed B.Ed/L.T. degree or B.Ed. degree by correspondence course from the recognized University of Uttaranchal or U.P., are eligible to get admission in the B.T.C. training course. The second academic qualification which has been incorporated in the advertisement also provides that the candidates who possessed the degree of Shiksha Shastri (regular) from Sanskrit University are also eligible for the same. The third category of the candidates who possessed physical education training – B.P.Ed, D.P.Ed. C.P.Ed recognized by the NCTE are also eligible. It was further provided that the aforesaid institution should have been recognized by the U.P. Govt. prior to 1997. 11. Learned counsel for the appellants contended that the degree of Shiksha Visharad given by the Hindi Sahitya Sammellan Allahabad could not be treated to be a degree of B.Ed. and such candidates are not eligible to seek admission in the B.T.C. course. It was contended on behalf of learned counsel for the writ petitioner-Muni Upreti that Shiksha Visharad degree obtained from the Hindi Sahitya Sammelan, Allahabad is equivalent to the B.Ed. degree. The Hindi Sahitya Sammelan, Prayag was established in the year 1910 and it was registered in the year 1914 under the Societies Registration Act. The Parliament enacted an Act, i.e. the Hindi Sahitya Sammellan Act, 1962 in order to promote the Hindi for the special studies or research. The main purpose to enact the said legislation was only to promote the language of Hindi throughout the India. Later on, in the year 1971 the Constitution Bench of Hon’ble Apex Court in Smt. Damyante Naranga Vs. The Union of India and others and The Hindi Sahitya Sammelan, and others Vs. Shri Jagdish Swarup and others reported in 1971 (1) SCC 678) declared the said Act ultra virus to the Constitution. It was further pointed out by the learned counsel for the writ petitioner-Munni Upreti that the Northern Zone in which Allahabad falls from where the degree had been awarded to the writ petitioner-Munni Upreti had not been recognized by the NCTE till today. It was also pointed out by the learned counsel for the writ petitioner-Munni Upreti that such recognition had already been granted for the Southern Zone only for the one academic year. Thus it is apparent from the record that till today they have not obtained the recognition of the institution-Hindi Sahitya Sammelan, Allahabad from NCTE. It is not disputed that the NCTE Act came into force in the year 1995 and the writ petitioner-Munni Upreti had obtained the degree of Shiksha Visharad from Hindi Sahitya Sammelan, Allahabad prior to 1995. The aforesaid advertisement did not contain that the degree of Shiksha Visharad obtained from Hindi Sahitya Sammelan, Allahabad is eligible to be admitted in the B.T.C. training course. If the advertisement did not indicate the aforesaid degree of Shiksha Visharad, the writ petitioner-Munni Upreti cannot claim to be eligible for the same. 12. It is not disputed that the said advertisement had been challenged before the learned Single Judge. If the advertisement is found valid according to the provisions of the law, it cannot be held that Shiksha Visharad conferred by the Hindi Sahitya Sammelan, Allahabad deemed to have been included in the said advertisement. It is presumed that the Government has considered all the aspects at the time of issuance of the advertisement. The appointment of the basic teacher in the basic schools is an important matter. If the education of children is not imparted by the duly experienced and good hands, the career of the children would be sealed in future. The State have been conferred a duty to impart the education to the wards of the people. So the Government while framing the rules and the issuance of the advertisement keeps in mind to maintain the standard of education, particularly in relation to the teachers’ education. Education is the backbone of every society and in deterioration in the standard of teaching in B.T.C. course would ultimately produce sub-standard prospective teachers who would be teaching in the schools throughout the State and on whose efficiency the future of the State would depend. If the teacher himself had received a sub-standard education, it is difficult to expect from him a higher standard of teaching to the students of the schools or the institutions. In this backdrop, it is also pertinent to mention that Hindi Sahitya Sammelan, Allahabad had not received the recognition from the NCTE till today. NCTE had been conferred a duty to maintain the standard of the education and as such, a provision has been enacted after 1995 that the courses recognized by the NCTE to be considered for the admission of the teachers for imparting the education to the wards of the citizen. The Hindi Sahitya Sammelan, Allahabad, Northern Zone could not receive the recognition till today. The learned counsel for the writ petitioner-Munni Upreti could not demonstrate us that the NCTE had recognized the Shiksha Visharad degree conferred by Hindi Sahitya Sammelan, Allahabad in the Northern Zone. It has been categorically mentioned in the affidavit filed in the special appeal by the writ petitioner/Munni Upreti at para 13 that the NCTE, Southern Zone have given recognition to the Shiksha Visharad course for one year with some condition imposed upon it but this course has not been given by the Northern Zone Committee of the NCTE. The copy of the recognition by the Southern Committee of NCTE has been annexed with this affidavit as Annesxure-6 which shows that the NCTE had given the conditional recognition for one year, 1999-2000 to Hindi Pracharak Kendra Shiksha Visharad Training College, Kodungallur Post-680664, Tichur District, Kerala to Shiksha Visharada. This letter does not indicate anywhere that Shiksha Visharad conferred by the Hindi Sahitya Sammelan, Allahabad has been recognized for the Southern Zone. The contents of the letter is placed hereunder:- “F/SRO/NCTE/1999-2000/9829 date: 17.7.99 TO BE PUBLISHED IN GAZETTE OF INDIA- PART III SECTION 4. Order In exercise of the authority vested under NCTE Act, the Southern Regional Committee after considering the application for grant of recognition, decided to accord conditional recognition for one year (1999-2000) to Hindi Pracharak Kendra Shiksha Visharada Training College, Kodungallur Post-680664, Tichur District, Kerala to Shiksha Visharada course of duration one year. The conditional recognition accorded is subjected to setting right the following deficiencies: 1. It has been noted out of 6,3 are not qualified. The unqualified staff should acquire M.Ed. qualification with 2 years as per NCTE norms. 2. Equipment for all the labs should be provided as per para 4 of NCTE norms. 3. Educational/professional journals should be subscribed as per NCTE norms. 4. Furniture has to be provided for all the rooms as per NCTE norms. 5. Accommodation for Class rooms, labs and library has to be provided as per NCTE norms. The institution should send a Compliance Report for having set right the above deficiencies to the Regional committee by 31.12.1999. By orders, Regional Director To, The Principal Hindi Pracharak Kendra Shiksha Visharada Training College, Kodungallur Post – 680664 Tichur District, Kerala 13. Thus even if it is treated as a recognition for one year, the facts remains that as till date the Hindi Sahitya Sammelan, Allahabad had not been recognized by the NCTE. It leads to take an inference that the quality of the education which is being imparted by it is not up to the mark and it is sub-standard. 14. It is also pertinent to mention here that the Government framed the policy that Vaidyas should also the qualified in respect of their profession and the Indian Medical Council Act, 1976 was enacted in which it was provided that the Vaidya Visharad and Vidya Rattan degrees conferred from 1931 to 1967 would only be recognized for the purposes of the practice and for other purposes. Likewise, the Government in the year 1995 enacted the NCTE Act. If the intention of the Legislature would have been to include Shiksha Visharad awarded by Hindi Sahitya Sammelan, Allahabad, they could have recognized the said degree in the Act itself or the Committee constituted under the Act would have considered this aspect and cold have recognized it s Shiksha Visharad degree from the back date. The Act provides the provision to seek recognition of the institution from the Committee constituted under the Act. But in the instant case, the Hindi Sahitya Sammelan, Allahabad had failed to obtain the recognition in respect of its degree of Shiksha Visharad. 15. The power of the court under Article 226 of the Constitution is only limited to have judicial review of the matter. The court while exercising the jurisdiction under Article 226 of the Constitution cannot legislate the law. The court can only interpret the law and cannot legislate the law by adding a degree which has not been prescribed by the Government after considering all the aspects of the matter. The Hon’ble Apex Court under Article 142 of the Constitution can supplement the existing legal framework to do complete justice between the parties, whereas such power has not been conferred upon under Article 226 of the Constitution to the High Court. There is no challenge before us with regard to the rule and the advertisement issued thereunder if the rules and advertisement are not declared ultra virus to the Act, the court cannot supplement the provisions of the rule by adding a degree of its own which is not available in the rules or the advertisement. 16. It is pertinent to mention there that Hindi Sahitya Sammelan, Allahabad also awards the degrees of Vaidya Visharad and Ayurveda Ratna. The case of Vaidya Visharad and Ayurveda Ratna would also be relevant for the purpose of this case because the same degrees had been awarded by the Hindi Sahitya Sammelan, Allahabad. Keeping in view of the above background the degrees awarded by the Hindi Sahitya Sammelan, Allahabad were de-recognized under the Indian Medical Central Council Act, 1970. It only recognizes the Vaidya Visharad and Ayurveda Ratna which were awarded in the year 1931 to 1967 alone. The matter came up before the Apex Court in Dr. Ravinder Nath Vs. State of H.P. and others reported in AIR 1993 SC p/408. In this case the petitioners acquired Visharad and Ayurveda Ratna in the year 1974 from Hindi Sahitya Sammelan, Allahabad and they claimed promotion to the post of Vaidya in the State of Himanchal Pradesh in which the rule provides that the essential qualification for the promotion to the post of Vaidya is Vaidya Visharad diploma course with 7 years experience or Ayurveda Ratna which is a degree from the recognized institution. The petitioners claim were rejected by the D.P.C. on the ground that they do not possess the requisite qualifications. The petitioners preferred petition before the Tribunal and the Tribunal allowed the petition and directed the State Government to convene a fresh D.P.C. to consider the case of the petitioners for their suitability for promotion to the post of Vaidya and to treat their promotion to the said post from the date their juniors were promoted to the post of Vaidya. Feeling aggrieved by the said decision, the State Government as well as the promotees preferred the appeals before the Hon’ble Apex Court. The Hon’ble Apex Court allowing the appeal held that the respondents do not claim that they have qualifications included in the Third or Fourth Schedule of the Act. Their case is that they possessed qualifications required by the State since they hold diplomas/ degree from the H.S.S., Allahabad which is mentioned at serial number 105 in that Schedule. The remark in column 4 of the Schedule against that entry, however, shows that diploma/degree given by H.S.S., Prayag from 1931 to 1967 alone are recognized under Section 17. Hence the D.P.C. could not have, on that day, recognized the qualifications of the respondents which were admittedly obtained in 1974. On this ground the writ petition filed by the respondents was dismissed. 17. Thereafter the matter again came up before the Apex Court in the case of Delhi Pradesh Registered Medical Practitioners Vs. Director of Health, Delhi Admn. Services and oth4ers and Swaroop Singh Vs. Director of Health Services and others reported in (1997) 11 SCC p/687. Notice was issued by the Director, Health Services, Delhi Administration indicating that the Indian Medicine Central Council had recognized Ayurveda Ratna and Vaid Visharada degrees awarded by the Hindi Sahitya Sammelan, Prayag, Allahabad only up to 1967 and the certificate of Ayurveda Ratna and Vaid Visharad given by the said organization after 1967 not being recognized under the said Act, registration obtained by any person as a medication practitioner on the basis of such degrees therefore would not be recognized and any person having such qualification would not be entitled to practice in Delhi are impugned in these appeals. It was also indicated in the said public notice that no Indian University or Board conducts one year’s course for giving the bachelor’s degree in Ayurvedic Medicine or through correspondence course no M.D. Degree in Ayurveda was conferred by any University or Board. The public at large was cautioned by the said public notice published in the newspaper. The Delhi Pradesh Registered Medical Practitioners’ Association moved an writ petition before the Delhi High Court challenging the validity of the said public notice issued by the Health Services, Delhi Administration. The writ petitions were dismissed by the Division Bench of the Delhi High Court by indicating that as in the Indian Medicine Central council Act, 1970 the said degrees had not been recognized after 1967 and the writ petitioners before the High Court had obtained such degrees from the said Hindi Sahitya Sammelan, Prayag long after the said Indian Medicine Central Council Act, 1970 was enforced they were not entitled to practice on the basis of the degrees obtained from the said Hindi Sahitya Sammelan, Prayag. Therefore, there was no occasion to interfere with the direction contained in the public notice and the petitions were dismissed. It is also held by the Apex Court that there is also no challenge as to the validity of the said Central Act, 1970. The decision of the Delhi High Court, therefore, cannot be assailed by the appellants. It was also held that proper consideration had not been given to the standard of education imparted by the said Hindi Sahitya Sammelan, Prayag and expertise acquired by the holders of the aforesaid degrees awarded by the said institution. In any event, when proper medical facilities have not been made available to a large number of poorer sections of society, the ban imposed on the practitioners like the petitioners rendering useful service to the needy and poor people was wholly unjustified. It was further held that it is not necessary for this Court to consider such submission because the same remains in the realm of policy decision of other constitutional functionaries. It was also held that what constitutes proper education and requisite expertise for practitioners in Indian Medicine, must be left to the proper authority having requisite knowledge in the subject. As the decision of the Delhi High Court is justified on the fact of legal position flowing from the said Central Act of 1970, the Apex Court did not interfere in the matter. The Apex Court, therefore, dismissed the appeals. 18. The matter again came up before the Apex Court in the case of State of Rajasthan and others Vs. Lata Arun, reported in AIR 2002 SC p/2642. The question which arises for determination in this case is whether the respondent had the eligibility qualification for admission in General Nursing and Midwifery and Staff Nurse Course commencing in the year 1990. The Director, Medical and Health Services had invited applications for the admission of Nursing Course in which the eligibility of the candidates was determined that the candidates must have possess first year of Three Years’ Degree Course (TDC) or 10+2; and that the candidates with science subjects (Biology, Chemistry and Physics) will be given preference. During the period the Indian Nursing Council had issued a set a Syllabi and Regulations for courses in General Nursing and Midwifery in which the prescribed minimum educational qualification for the candidates was 12th class pass or its equivalent preferably with science subjects. The petitioner possesses the Madhyama Certificate issued by the Hindi Sahitya Sammelan, Allahabad in 1984. This Certificate was previously recognized as equivalent to a degree in Hindi. The said recognition had ceased to be operative with effect from 01.04.1985. The petitioner was given provisional admission in the Nursing Course which was subsequently cancelled that the writ petitioner had not the educational qualification prescribed for the said course. The Rajasthan High