IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY FIFTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION Nos: 16472, 15326, 15332, 15336 and 19109 of 2009 BETWEEN: S. Swapna, D/o. Muthilinga Chary, R/o. raipole Village, Ibrahimpatnam Mandal, R. R. District and others. ... PETITIONERS AND The District Educational Officer, Ranga Reddy District and others. ...RESPONDENTS Counsel for the Petitioners: MR. M. SUREDNER RAO Counsel for the Respondents: GP FOR SERVICES - I The Court made the following order: COMMON ORDER: (per Hon’ble Sri Justice Vilas V. Afzulpurkar) This batch of writ petitions is directed against the judgment of the Andhra Pradesh Administrative Tribunal OA.No.3242 of 2009 and batch dated 27.04.2009. All the said OAs were dismissed by the tribunal by the aforesaid judgment and aggrieved thereby some of the applicants are petitioners in this batch of writ petitions. 2. The petitioners in this batch are aspiring for the post of Secondary Grade Teacher (SGT) under the Andhra Pradesh Direct Recruitment of Teachers (Scheme of Selection) Rules, 2008 (hereinafter called DSC- 2008). All the petitioners are studying final year D.Ed course and are to appear for the final year examinations in September 2009. The Government of Andhra Pradesh issued G.O.Ms.No.161 Education (Services–VI) Department dated 06.12.2008 in exercise of its powers under Article 309 of the Constitution of India read with rule making power under the Andhra Pradesh Panchayat Samithis and Zilla Parishads Act; Andhra Pradesh Municipalities Act and Education Act. The aforesaid rules are to apply to all categories of teacher posts under the management of Government, Zilla Praja Parishads, Mandal Praja Parishads, Integrated Tribal Development Agencies, Municipalities, Municipal Corporations and such other categories of teacher posts in all other schools as would be notified by the Government from time to time. The aforesaid rules lay down the method of recruitment, qualifications for the post of School Assistants in various subjects and secondary grade teachers and equivalent cadres in various subjects and Language Pandits under various subjects apart from physical education teachers. 3. The rules also lay down composition of selection committee for each District, time schedule for recruitment of teachers, notification of vacancies, the minimum age and maximum age requirements, method of submission of application forms, syllabus for the written test, publication of the key and selection procedure etc. The said rules are subject to the outcome of review petition in WPMP.No.3030 of 2008 in WP.No.12800 of 2007 and batch pending before this Court and SLP.No.27031 of 2008 pending before the Honourable Supreme Court. In pursuance of the rules, the Director of School Education notified the vacancy position and the said notifications were published in newspapers. The initial publication dated 08.12.2008 was followed by errata dated 09.02.2009 whereunder the vacancy position was revised and published and the last date for receiving the application forms was also extended up to 15.02.2009. It is stated that the said recruitment drive is the largest of all and covers about 50,000 vacancies. 4. As mentioned above, in this batch of cases we are concerned with the recruitment to the posts of SGT teachers and equivalent cadres. Rule 4 dealing with qualification is as follows: (1) A candidate for selection to these posts shall possess academic and professional/training qualifications as mentioned in Rule 4, 5 and 6, as the case may be.” Rule 4(3)(a) as it relates to the Secondary Grade Teachers prescribe the following qualification: “Must possess Intermediate Certificate issued by the Board of Intermediate Education, Andhra Pradesh Hyderabad and D.Ed Certificate issued by the Director of Government Examinations, Andhra Pradesh. OR Must possess a Bachelor’s Degree and a B.Ed. (Subject to the outcome of review petition in WPMP.No.3030 of 2008 in WP.No.12800 of 2007 and batch pending before this Court and SLP.No.27031 of 2008 pending before the Honourable Supreme Court)” Rule 8 providing for submission of application forms provide under (ii) and (iii) as follows: (i) … (ii) The candidate shall submit the application along with attested copies of all relevant certificates. (ii) Non-submission of the attested copies of certificates and memos of marks pertaining to the minimum qualifications prescribed for the post, will make his/her application invalid and hence liable for rejection.” 5. After promulgation of these rules, the Government of Andhra Pradesh received number of representations from aspiring candidates, peoples representatives etc. wherein it was brought to the notice of the Government that several new subjects like Genetics, Micro-Biology, Applied Physics etc. have been introduced in the curriculum apart from basic subjects of Botany, Zoology, Physics, Chemistry and keeping in view the emerging trends in the field of education and the number of aspiring candidates, to seek the best talent and quality in teaching, in the interest of students, the Government decided to introduce these modern subjects of specialization in the said recruitment drive and accordingly, modified the rules initially issued G.O.Ms.No.161 dated 06.12.2008 by incorporating these new subjects and issued G.O.Ms.No.28 Education (Services – VI) Department dated 29.01.2009 wherein the Government also amended Rule 4 dealing with qualification by inserting Para 6 extracted below, around which question involved in this batch are centered. “6) The candidates who are going to appear for final year of qualifying academic or qualifying professional course examinations, for eg: B.Com, B.Ed. appearing for final years M.A. English or M.A. Telugu etc., D.Ed/Pandit Training/B.Ed./B.P.Ed./U.G.D.P.Ed. of recognized institutions etc., to be held by May 2009 are also permitted to apply for the posts of Secondary Grade Teachers/School Assistants/Physical Education Teachers/Language Pandits subject to fulfilling all other conditions and on production of “Bonafied Certificate” issued by the Principal of the Institutions in which they are studying, duly specifying that the candidate “is a final year student of…course for which the final exam is scheduled for …(month) 2009. Further, provided that, all such candidates shall have to produce their degree certificates at the time of final selection/counseling as per schedule declared by Director of School Education, A.P., Hyderabad.” 6. Under the aforesaid amendments, which are issued by G.O.Ms.No.28 dated 29.01.2009 the candidates appearing for final year of various courses, as mentioned above, including D.Ed, for which examinations were scheduled to be held in May 2009 were also permitted to apply. However, a condition was also incorporated that at the time of final selection/counseling the candidates must produce their degree certificates. It is the aforesaid amendment, which has given rise to this spate of litigation covering batch of OAs referred to above and the present batch of writ petitions as well as the converse case, which is the subject matter of WP.No.16866 of 2009. So far as WP.No.16866 of 2009 is concerned, the petitioners question the validity of these amendments issued under Para 6 of the GO extracted above, which permit final year students of various courses including D.Ed to appear for the test though they do not possess the qualification prescribed. The said writ petition is dealt with separately from this batch of cases. 7. The petitioners in this batch of cases are candidates, who are studying D.Ed course in private colleges. The Association of Management of Private Colleges Education in Andhra Pradesh represented to the Government that they will be able to complete the required number of working days of the first year D.Ed for the year 2007-2008 by the end of August 2008 by working an hour extra per working day and also by working during the holidays. The Government accordingly favourably considered their request by directing the Director of School Education to announce the counseling to admit students into private D.Ed colleges to run the course of two years duration for the year 2007-2009 during July, August 2008. Based thereon affiliations were also ordered to be issued to all such colleges. Later, the Director of School Education reported to the Government that private management have started D.Ed course for the batch 2007-2009 only in the month of September 2007 for first year students and conducted examinations in May 2008. However, the course for second year started in the Government D.Ed colleges by June 2008 as per the regular schedule and examinations were scheduled to be held from 21.05.2009 to 26.06.2009. However, the private D.Ed colleges, which have to complete 220 working days each year would be able to conduct examinations only in September 2009 and in view of that the Director of School Education requested permission of the Government and necessary instructions to Director of Government Examinations for conducting separate second year D.Ed examinations for Government and Private D.Ed colleges. Accordingly, vide orders of the Government in G.O.Rt.No.264 Education (SE-TRG) Department dated 05.05.2009, for the circumstances as explained by the Director of School Education, the Government permitted the Director of Government Examinations, Andhra Pradesh, to conduct examinations separately for Government and Private D.Ed. colleges for the batch 2007-2009. Thus, for the Government colleges, the examinations were scheduled in May 2009 whereas for the private colleges examinations were scheduled in September 2009. 8. The main contention of the petitioners in this batch of cases is that while final year students of D.Ed studying in Government colleges, whose examination is scheduled in May 2009, are permitted to apply but the same benefit is not being extended to the petitioners, who are studying final year D.Ed course in private colleges. 9. Similar contention as raised by the petitioners was also raised by some of the applicants in O.A.No.4736 of 2009 before the tribunal and the same was rejected by the tribunal by order dated 25.03.2009. The petitioners herein being not parties to the said OAs, however, raised a further larger issue in the batch of OAs as to whether there is any rationale classification among the Government D.Ed colleges and private D.Ed colleges so far as the eligibility of final year students to apply for the posts concerned. The tribunal has once again considered the entire matter afresh and had come to hold that the students of Government and Private D.Ed colleges stand on a different footing inasmuch as the academic year of the private institutions would not be completed before September 2009 and as such they cannot claim parity with the Government D.Ed colleges and the batch of OAs were dismissed. 10. In this batch of writ petitions, we have heard Sri M. Surender Rao, learned counsel for the petitioners and the learned Government Pleader. The gist of the contentions as raised before the tribunal are reiterated in this batch. 11. Learned counsel for the petitioners states that the petitioners cannot be at fault, as the commencement of their course 2007-2009 was delayed on account of the Government altering the schedule of counseling and admissions between the Government and Private institutions. The Government accorded permission to private D.Ed colleges to run the course of two-year duration for the year 2007-2009 from July, August 2008 and later permitted the management to admit candidates through spot admissions duly fixing the cut off date as 03.09.2008. Consequently, their two-year course would be completed only by September 2009 and thereafter the examinations would be held. Learned counsel submits that because of the late starting of the course the petitioners have been deprived of a chance to compete for the recruitment for no fault of theirs. Learned counsel would also submit that Para 6, extracted above, under which eligibility to apply was extended to final year students of Government D.Ed colleges, which was to be held in May 2009, has no nexus with the purpose sought to be achieved inasmuch as final year students, who are studying in Government colleges or private colleges stand on the same footing. 12. Learned Government Pleader contended that the recruitment required to be made under above notification was to expeditiously fill up the posts of various categories of teachers. The posts required to be filled up are in the number of more than 50000 and the selections cannot be indefinitely delayed awaiting one examination or the other to be held. The course of study so far as private D.Ed colleges are concerned, was apparently delayed because the private management had sought permission to complete admissions for the year 2007-2009 as late as possible and the cut off date approved for spot admissions was 03.09.2008. Consequently, therefore, the number of working days required to be fulfilled by them would not make it feasible to hold their examinations along with Government D.Ed colleges. Keeping in view these circumstances, the learned Government Pleader states that the request of the Association of Management of Private Colleges was favourably considered by the Government by issuing G.O.Rt.No.264 dated 05.05.2009 permitting holding of examination separately for Government colleges and Private colleges. The petitioners, therefore, cannot claim that there is parity with the final year students of Government colleges. Learned Government Pleader, therefore, supports the judgment of the tribunal and seeks that the writ petitions may be dismissed. 13. The question, therefore, that really falls for consideration in this batch is whether there is any parity among the students studying final year course in Government D.Ed colleges and private institutions? If so, whether Para 6 under G.O.Ms.No.28 dated 29.01.2009 violates Article 14 of the Constitution of India? 14. It is to be appreciated that the rules framed under G.O.Ms.No.161 dated 06.12.2008 are framed under Article 309 of the Constitution of India. It is, therefore, under legislative powers of the Government that the aforesaid rules are framed. The validity of the rules including the amendment thereafter under G.O.Ms.No.28 dated 29.01.2009 is, therefore, required to be considered on par with the validity of the statute framed by the Parliament or the State Legislature. The relevant portion of the judgment of the Supreme Court in B.S. YADAV V. STATE OF HARYANA[1] is extracted hereunder. “…the power which the Constitution has conferred on the Governor by the proviso to Article 309 is a legislative and not an executive power; and since the Governor exercises a legislative power while making rules under the proviso to Article 309, the principle of the independence of the judiciary is not in any manner violated thereby. Judicial independence, says the Counsel, means freedom from executive interference, not freedom from laws.” 15. Under G.O.Ms.No.161 dated 06.12.2008 the qualifications prescribed for the post of SGT teachers and other categories is intermediate as well as D.Ed certificate. Under the amendment under G.O.Ms.No.28 dated 29.01.2009 the said criteria was not diluted. The criteria of a candidate possessing intermediate with D.Ed certificate is still applicable even with respect of candidates who are appearing for final year examinations as would be evident from requirement of Rule 8(iii), which states as follows: “8(iii). Non-submission of attested copies of certificates and memos of marks pertaining to the minimum qualification prescribed for the post, will make his/her application invalid and hence liable for rejection.” Thus, the candidates though permitted to appear for the selection have to produce certificate of their acquiring of the minimum qualification at the time of final selection/counseling as provided under Rule 6 read with above Rule 8(iii). Thus, the aforesaid amendment does not any way dilute or affect the minimum qualifications and only eligibility to appear for the selection process is extended to the candidates appearing for the final year examination in May 2009. It is also to be noted that the said eligibility is extended not only to final year D.Ed candidates but also to B.Com, B.Ed, MA (English), MA (Telugu) etc. apart from D.Ed/Pandit training/B.Ed/B.P.Ed/U.G.D.P.Ed etc. Thus all the qualifying courses are included so far as permitting the final year students appearing for selection provided their final year examinations are to be held in May 2009. A uniform condition is imposed on all such candidates that they will have to produce their degree certificates at the time of final selection/counseling in proof of their having fulfilled the minimum qualification prescribed. It also cannot be denied that commencing of course in the Government colleges for D.Ed 2007-2009 and the private management colleges is not simultaneous and the time gap within the said two streams resulted in students studying in Government D.Ed colleges to complete the minimum 220 days per year and therefore, their final year examination could be held in May 2009 whereas for the private management D.Ed colleges the examinations are to be held only after completion of 220 working days in September 2009. It, therefore, shows that the students studying D.Ed course in Government colleges have completed required number of working days for each year whereas the students studying in private institutions have not completed the required number of minimum working days also by the last date of applications invited in pursuance of the aforesaid notification of DSC-2008. 16. The contention of the learned counsel for the petitioners that there is parity among the students of Government and private managements is clearly required to be answered against the petitioners. Consequently, therefore, they cannot claim any right based on Article 14 of the Constitution of India. It is also represented that the written examination for all candidates was held in May 2009 and admittedly by that date the students studying D.Ed final year in private institutions would not have completed their mandatory 220 working days required for completion of the course. The eligibility extended to final year students under the aforesaid G.O.Ms.No.28 dated 29.01.2009 would, therefore, necessarily mean that simultaneously with the holding of written examination for the present selections the final year candidates would have completed their requisite course and would have appeared for the final year examinations as well and such being not the case of the students studying D.Ed final year course under private management, they cannot seek the same benefit. 17. The relief claimed in most of the OAs before the tribunal was that the applicant is entitled to be extended the right to offer his candidature for the post of SGT in DSC-2008 on par with those studying in Government institutions. The amendment permitting final year students as provided under Para 6 under G.O.Ms.No.28 dated 29.01.2009 and particularly cut off date of final year examinations held in May 2009 as such was not under challenge in the batch of OAs. Only on the ground of parity the said relief was asked for. On facts, therefore, no case establishing parity between students studying in final year D.Ed course in Government colleges and private colleges having been found to exist and G.O.Ms.No.28 dated 29.01.2009 as above, not having been challenged, the further relief based upon Article 14 of the Constitution of India cannot be claimed by the petitioners. The writ petitions, therefore, are devoid of merits and are liable to be dismissed. Accordingly, the view of the tribunal under the impugned judgment is sustainable and no error is discernable warranting exercise of certiorari jurisdiction by this Court. The writ petitions are accordingly dismissed. However, there shall be no order as to costs. ______________ V. ESWARAIAH, J _____________________ VILAS V. AFZULPURKAR, J September , 2009 DSK [1] 1980 (Supp) SCC 168