1 WP 5116/2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5116 OF 2007 Syed Ahmed s/o Syed Nawazuddin And Another. ... Petitioners. Versus The State of Maharashtra & Others. ... Respondents. ------ Shri. S.B. Talekar, Advocate for the petitioners. Shri. Umakant K Patil, Assistant Government Pleader, for respondents Nos.1 and 2. Shri. A.S. Usmanpurkar, Advocate for respondent No.4. Shri. M.P. Tripathi, holding for Shri. K.J. Ghute Patil, Advocate for respondent No.5. Shri. S.T. Shelke, Advocate for respondent No.6. Shri. V.S. Panpatte, Advocate for respondent No. 8. ------ With Writ Petition No.5576 Of 2007 2 WP 5116/2007 Komal D/o Suresh Joshi (Now Komal W/o Manoj Kulkarni) ... Petitioner. Versus The Union of India & Others. ... Respondents. -------- Shri. C.K. Shinde, Advocate for petitioner. Shri. Alok Sharma, Assistant Solicitor General, for respondent No.1. Shri. Umakant K Patil, Assistant Government Pleader for respondents Nos.3,4 and 5. Shri. U.S. Malte, Advocate, for respondent No.6. ------- CORAM: NARESH H PATIL & N.D. DESHPANDE, JJ. Order reserved on : 9th July 2009 Order pronounced on : 18th July 2009. ORDER (Per Naresh H. Patil, J.): 1) These two writ petitions raise identical issues, therefore, we dispose of these two petitions by a common order. 3 WP 5116/2007 2) Learned counsel appearing for the petitioners in these writ petitions mainly submitted that the judgment delivered by Full Bench of this Court (Coram: P.V. Hardas, S.P. Kukday and J.H. Bhatia, JJJ.) dated 12th September 2006 in Writ Petition No.2195 of 2005 (Ramesh Rajaram Avchar vs. The State of Maharashtra & Others) is required to be considered as sub- silentio. The Full Bench did not consider the provisions of the National Council for Teacher Education Act 1993. The view adopted by the Full Bench is not in conformity with Article 16 of the Constitution of India as the training institutions of other States from where the petitioners have obtained diploma / degree were recognized by the National Council for Teacher Education (“NCTE”). The petitioners are entitled to seek admissions anywhere throughout the country. Denial of such an opportunity would be unreasonable, arbitrary and against the constitutional spirit. In support of the submissions the learned counsel appearing for the 4 WP 5116/2007 petitioners have placed reliance on the following judgments. (1) State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahaviduyalaya & Others, (2006) 9 SCC 1. (2) State of U.P. v. Synthetics and Chemicals Ltd. (1991) 4 SCC 139. (3) Commissioner of Income Tax v. Sun Engineering Works (P) Ltd., (1992) 4 SCC 363. (4) Arnit Das v. State of Bihar, (2000) 5 SCC 488 (5) A.V.S.N. Rao v. State of A.P., AIR 1970 SC 422. (6) Union of India v. Sanjay Pant, AIR 1993 SC 1365. (7) Municipal Corporation of Delhi v. Gurnam Kaur,(1989) 1 SCC 101. 3) It was further submitted that the State is not empowered to refuse appointment or approval to the petitioners on the basis of equivalence of the diploma granted by the State institutions and of other institutions from different States. Even the clause relating to residency of the State of Maharashtra would also be arbitrary. 5 WP 5116/2007 4) On behalf of the National Council for Teacher Education, affidavit-in-reply was filed. The State of Maharashtra also filed affidavit-in- reply. 5) The learned counsel appearing for the National Council for Teacher Education adopted a stand in paragraphs 7 and 8 of its affidavit-in- reply which read thus: “7. That, Art.246(1) of the Constitution of India declares that notwithstanding anything in clauses (2) and (3) of Art.246, Parliament has exclusive power to make laws with respect to the matters enumerated in List I in the Seventh Schedule of the Constitution of India. Since the NCTE Act was enacted by the Parliament and is covered by Entry 66 of List I of the seventh Schedule of the Constitution of India, the State cannot restrict the meaning of teacher education qualification as declared in section 2(m) of the NCTE Act. The validity of teacher education qualification, such as Diploma in Education (D.Ed), has no concern with the State in which it is obtained. The only requirement is that the diploma should be issued by the examining body for the students of the institution having due recognition from NCTE. 6 WP 5116/2007 8. That, the NCTE has prescribed uniform norms and standards for all recognized teacher education institutions of the country by framing statutory regulations. Under section 12(e) of the NCTE Act, the NCTE has been assigned the function to lay down the norms and standards for any specified category of courses or training in teacher education, including the minimum eligibility criteria for admission thereof, the method of selection of candidates, duration of course, course contents and mode of curriculum. The NCTE has framed statutory regulations from time to time in exercise of these functions. For these reasons the student declared successful by the examining body of one State will be at par with the student declared successful by the examining body of another State.” 6) The State has opposed the stand adopted by the petitioners and the NCTE. Paragraphs 4 and 5 of the affidavit-in-reply filed in Writ Petition No.5576 of 2007 by Mr. Yashwant Namdeo Thosare, Deputy Education Officer (Secondary) Zilla Parishad Jalgaon read thus: “4. With reference to para no.5 of the writ petition I say and submit that, as per Section 9 of the M.E.P.S. (Rules and Regulations) 1981, the concerned school management is empowered to make 7 WP 5116/2007 appointments of the teaching and non teaching staff in the school and while doing so the same are under obligation to follow the essential qualifications and other criteria provided under Section 5 of the said M.E.P.S. Act, 1977 and to make such of the appointments in violation of the said Act, rules, Government revolutions and any other norms. I say that, undisputedly the appointment of the petitioner has been made by the concerned management vide order dated 13-11-2003. I say that, being a controlling authority, this respondent has the supervisory power to verify whether the same is in accordance with the above said Act, Rules and Government Resolutions etc. I say and submit that, since the said petitioner was not fulfilling the required educational qualifications etc. in as much as the D.Ed. qualification acquired by the petitioner from Madhyapradesh is not equivalent to the D.Ed. qualification acquired from the Maharashtra State nor the petitioner has produced nay record in that respect. Accordingly vide letters dated 5-6-2004 and 7-6-2007 the same was intimated and the request for according approval to the said appointment was also refused. The copies of the letters dated 5-6-2004 and 7-6-2007 are annexed herewith and marked as Exhibit R.1. 5. I say and submit that, the Government of Maharashtra being the competent authority to decide and provide the policy for appointment and or equivalent or certain qualifications has issued Government resolution dated 31-5-1993 and 6-9-2002, accordingly, the 8 WP 5116/2007 Director of M.S.C.E.R.T. Pune vide communication dated 30-4-2007 clarified to the petitioner that her said D.Ed. qualification from Madhyapradesh acquired after 31-5-1993 cannot be treated as equivalent D.Ed. qualification in the State of Maharashtra. The copies of the said communication dated 30-4-2007 along with the Government resolution dated 31-5-1993 and 6-9-2002 are annexed herewith and marked as Exhibit R-2.” 7) The learned Assistant Government Pleader Shri. Umakant Patil has placed on record copy of the judgment of the Full Bench of this Court wherein identical issue was raised and answered. It was decided that the State was empowered to issue resolution and define qualification for engaging teachers in primary education. According to Shri. Patil the State is entitled to put suitable conditions looking to the socio economic and linguistic structure of the State as the issue relates to primary eduction to be provided in the state. The learned AGP further brought to our notice that a Special Leave Petition has been filed against the judgment of the Full Bench which is pending in the Apex Court. As regards 9 WP 5116/2007 the issue relating to the field being occupied by Central legislation Shri. Patil submits that the Full Bench judgment cannot be overlooked on the principle of it being sub-silentio. 8) The learned counsel appearing for the respondents have placed reliance on the following reported judgments in support of their contentions. (1) Shailaja Ashokrao Walse v. State of Maharashtra, 1999 (1) Mh.L.J. 291 (2) Jayashree Sunil Chavan v. State of Maharashtra, 2000 (3) Mh.L.J. 605 9) We have considered the submissions advanced. Perused the documents placed on record. We have perused the judgments cited supra before us. We have even perused the judgment of the Full Bench of our Court (supra). 10) The Registry of this Court has informed that by an order dated 12-3-2007 notice was issued in the SLP (C) No.4805 of 2007 (Ramesh v. 10 WP 5116/2007 State of Maharashtra & Ors) and status-quo as on the date was ordered. By order dated 7-4-2008 the matter was adjourned for two weeks. By order dated 18-7-2008 the matter was adjourned further on the request made by one of the contesting parties and by order dated 15-12-2008 the Apex Court granted leave and the hearing of the appeal was expedited. The learned Assistant Government Pleader submits that to his knowledge the appeal is still pending before the Apex Court. 11) We do not find that the petitioners have made out a case for deviating from the view adopted by the Full Bench of this Court. The submission that the implication of the provisions of the National Council for Teacher Education Act were never considered by the Full Bench cannot be accepted. 12) The stand adopted by the State in respect of primary education is reasonable. We do not notice any arbitrariness in the same. The issue is already sub-judice before the Apex 11 WP 5116/2007 Court. 13) Considering the aforesaid facts and circumstances of the case we are of the view that no interference is warranted in these writ petitions in exercise of extra ordinary writ jurisdiction under Article 226 of the Constitution of India. 14) The writ petitions are dismissed. (N.D. DESHPANDE, J.) (NARESH H PATIL, J.) rsl/ wp.5116.07