IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.8860 OF 2007 1. NIRANJAN KUMAR, AGED ABOUT-39 YEARS, S/O SRI MAHENDRA PRASAD SINGH, R/O VILLAGE+P.O.- BABHANGAWAN, P.S.+DISTRICT- LAKHISARAI, AT PRESENT RESIDING AT MOHALLA- KARYANAND NAGAR (WEST) LAKHISARAI, P.S.+DIST-LAKHISARAI. 2. RAJNI KUMARI, AGED ABOUT 31 YEARS, D/O SRI RAJENDRA SINGH, R/O NAYA TOLA, ABHIMANYU CHOWK, CHITRANJAN ROAD, PURANI BAZAR, LAKHISARAI. ………..PETITIONERS. VERSUS 1. THE STATE OF BIHAR THROUGH PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF NEW SECRETARIAT, PATNA. 2. SECRETARY AND COMMISSIONER, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. DIRECTOR, PRIMARY EDUCATION, GOVERNMENT OF BIHAR, PATNA. 4. DISTRICT SUPERINTENDENT OF EDUCATION CUM S.D.E.O. CUM MEMBER SECRETARY OF SELECTION/PANEL COMMITTEE JAMUI. 5. DISTRICT EDUCATION OFFICER CUM MEMBER SECRETARY OF SELECTION/PANEL COMMITTEE, ZILA PARISAD TEACHER, JAMUI. 6. DISTRICT SUPERINTENDENT OF EDUCATION CUM S.D.E.O CUM MEMBER SECRETARY OF SELECTION/PANEL COMMITTEE LAKHISARAI. 7. DISTRICT EDUCATION, OFFICER CUM MEMBER SECRETARY OF SELECTION/PENEL COMMITTEE, ZILA PARISAD TEACHER, LAKHISARAI. 8. DISTRICT SUPERINTENDENT OF EDUCATION CUM S.D.E.O. CUM MEMBER SECRETARY OF SELECTION/PANAL COMMITTEE BEGUSARAI. 9. DISTRICT EDUCATION OFFICER CUM MEMBER SECRETARY OF SELECTION/PANEL COMMITTEE, ZILA PARISAD TEACHER, BEGUSARAI. 10. DISTRICT SUPERINTENDENT OF EDUCATION CUM S.D.E.O. CUM MEMBER SECRETARY OF SELECTION/PANEL COMMITTEE, SAMASTIPUR. 11. DISTRICT EDUCATION OFFICER CUM MEMBER SECRETARY OF SELECTION/PANEL COMMITTEE, ZILA PARISAD TEACHER, SAMASTIPUR. 12. DISTRICT SUPERINTENDENT OF EDUCATION CUM S.D.E.O. CUM MEMBER SECRETARY OF SELECTION/PANEL COMMITTEE, NAWADA. 2 13. DISTRICT EDUCATION OFFICER CUM MEMBER SECRETARY OF SELECTION/PANEL COMMITTEE, ZILA PARISAD TEACHER, NAWADA. 14. DISTRICT SUPERINTENDENT OF EDUCATION CUM S.D.E.O. CUM MEMBER SECRETARY OF SELECTION/PANAL COMMITTEE, BANKA. 15. DISTRICT EDUCATION OFFICER CUM MEMBER SECRETARY OF SELECTION/PANEL COMMITTEE, ZILA PARISAD TEACHER, BANKA. ………………………RESPONDENTS. ----------- 05/ 30.09.2011 Heard counsel for the parties. 2. The prayer of the petitioners in this writ application reads as follows:- “That this is an application for issuance of appropriate writ, order/direction including writ in the nature of mandamus directing and commanding the respondents to consider the candidature of petitioners for their appointment on the posts of Zila Parishad Secondary Teacher Nagar/Nagar Panchayat Secondary Teacher, Nagar/Prakhand Teacher pursuant to Teacher (Employment & Service conditions) Rule, 2006 on the basis of cut off marks as the petitioners have passed the Senior Teachers Training Advanced Level Course (Equivalent to B.Ed. Course) from All India correspondence coaching, society, Calcutta (Registered with Govt. of West Bengal) which had got recognition from the govt. of Bihar and the same was also declared legal and valid by a Division Bench of this Hon’ble Court and reported in 1985 PLJR page 709 and being followed on several occasions. Consequently direct the respondents to appoint the petitioners on the posts in question if they are other wise found fit for appointment.” 3. Learned counsel for the petitioners has submitted that petitioner no.1 has passed the examination of Senior Teachers Training 3 Advanced Level Course in 1st Class from All India Correspondence Coaching Society which is registered by the Government of West Bengal. He has also pointed out that petitioner no.2 has also passed the examination of Senior Teachers Training Advanced Level Course in the year 2001 conducted by All India Correspondence Coaching Society and as such, their training qualification need to be recognized as was already held by a Division Bench of this Court in the case of Sri Mahendra Prasad Mehta vs. The District Superintendent of Education & anor., reported in 1985 PLJR 709. Reliance has also been placed on an order of this Court dated 8.5.2007 in C.W.J.C.No. 12460/2006 wherein a direction has been issued to consider the case of the petitioner as with regard to equivalence of teachers training qualification. 4. In this case the respondents have also filed a counter affidavit wherein it has been stated that the degree of training qualification of only such institution can be recognized if the institution is recognized by the Central Government/ State Government or 4 the Board of Council recognized by the Central Government/ State Government. Reference has also been made to the provisions of National Council of Teachers Education Act, 1993 wherein determination of minimum qualification for recruitment of teachers has been laid down. A plea has been taken that the provision of NCTE Act, 1993 is effective from 17.8.1995 and as such, when there is no proof of All India Correspondence Coaching Society to have been recognized under NCTE Act, the training qualification of the petitioners would not make them entitled much less eligible for being appointed as a teacher under the Bihar Elementary Teachers (Recruitment and Service Condition) Act, 2006 wherein the eligibility is of two years Diploma or Certificate or B.Ed. course from a training institute recognized by the NCTE. 5. By a separate counter affidavit respondent no.4 has placed on record the list of Institute issued by the State Government wherein the name of All India Correspondence Coaching Society, Kolkata does not figure in. As with regard to the order dated 8.5.2007 in C.W.J.C.No. 12460/2006 it has been explained 5 that no firm direction has been issued for recognizing a particular degree and only a liberty has been given for filing a representation for its being considered by the State Government. 6. Learned counsel for the State has also sought to distinguish the judgment of the Division Bench in the case of Sri Mahendra Prasad Mehta (supra). 7. In the considered opinion of this Court the requirement of training qualification either for appointment of a teacher in High School being governed by the statutory rules, its true intent has to be gathered from such Rules. The 2006 Rules so far it relate to qualification of training being common for High School Teacher, reads as follows: ^^4- fu;qfDr gsrq%& ¼d½ ftyk ifj"kn ek/;fed f'k{kd ds fy, vgZrk%& ¼i½ Hkkjr dk ukxfjd gks rFkk fcgkj jkT; ds fuoklh gksaA ¼ii½ fdlh ekU;rk izkIr fo'ofo|ky; ls U;wure 45 izfr'kr vadksa ds lkFk Lukrd dh fMxzh gksA vuqlwfpr tkfr@vuqlwfpr tutkfr@vR;Ur fiNM+k oxZ@fiNM+k oxZ ,oa fodykax ds fy, U;wure fu/kkZfjr vad esa 5 izfr'kr dh NwV nh tk,xhA ^^ijUrq fcgkj enjlk f'k{kk cksMZ }kjk iznRr vkfye dh fMxzh ,oa dkes'oj flag njHkaxk laLd`r fo'ofo|ky; }kjk iznRr 'kkL=h ds fMxzh dks Lukrd ds lerqY; ekuk tk;sxk** ¼iii½ jk"Vzh; v/;kid f'k{kk ifj"kn~ vf/kfu;e ykxw gksus ds iwoZ ekU;rk izkIr izf'k{k.k laLFkk ls ch0,M0 vFkok vf/kfu;e ykxw gksu ds ckn jk"Vzh; v/;kid f'k{kk ifj"kn~ }kjk ekU;rk izkIr izf'k{k.k laLFkk ch0,M0 dh fMxzhA (underlining for emphasis) 8. From the reading of the underlined 6 portion of aforesaid Rules it is clear that the qualification Bachelor of Education (B.Ed.) from a recognized institution before coming into force of N.C.T.E. Act, therefore, has to be acquired as a condition precedent for appointment on the post of teacher in the High Schools as per 2006 Rules. A recognized institution would be one which was either recognized by the University or by the State of Bihar. The Institute in question, namely, All India Correspondence Coaching Society, is said to be only registered by the Government of West Bengal under the Societies Act, 1961. There is nothing on record to show that the aforesaid Coaching Society was ever affiliated or recognized by any University or even by the State Government. 9. The reliance placed by the learned counsel for the petitioner the letter of the Coaching Society dated 1.11.2006 in response to the query made by the petitioner in his letter dated 31.10.2006 is also misconceived inasmuch as the aforesaid letter would by itself unfold an answer to the credibility of such institution wherein all that has been stated is that the institution is registered 7 by the Government of West Bengal under the Society Registration Act, 1961 and the emblem of this institution is approved and registered by the Ministry of Human Resources Development, Government of India. That, however, is not the requirement under the Rules framed by the State Government under 2006 wherein a training institution on or after the enforcement of NCTE Act, 1993 must have necessarily approval and recognition of NCTE. Nothing has, however, been brought on record in this regard as with regard to recognition of All India Correspondence Coaching Society Kolkata by N.C.T.E. The use of emblem will also not mean that it was a recognized institution by any University or even by the Government of India. 10. In any event the Government of Bihar has never recognized this All India Correspondence Coaching Society, Kolkata as is apparent from the counter affidavit filed by the respondents wherein the list of recognized institution for the purpose of training issued by the Government of Bihar even in respect of institution of the State of West Bengal has been circulated. The name of the institution 8 in question, namely, All India Correspondence Coaching Society does not exist in the same and as such, the said institution cannot be treated being a recognized institution by the State of Bihar which is a condition precedent for the training qualification completed by a teacher for being employed in the State of Bihar. 11. Counsel for the petitioners, however, was quite emphatic in his submission that the issue in question has been directly answered by the Division Bench in the case of Sri Mahendra Prasad Mehta (Supra). From a reading of the said judgment it however becomes clear that first of all the case therein was for appointment on the post of teachers in Primary School relating a period when B.Ed. qualification was not prescribed as an essential qualification under the Rules. For such post of Primary School teachers at the relevant point of time the qualification being not prescribed by any statutory Rules the Division Bench had in the case of Mahendra Prasad Mehta (supra) had only looked into requirement laid down in the advertisement which had provided that the applicant should 9 be Matric or equivalent and trained. 12. It was in this background that the basic training examination course from a College in Kalingpong in the State of West Bengal was considered to be sufficient only on the ground that since in the advertisement there was nothing mentioned about two years teachers training course, the petitioners of those cases could not be said to be ineligible. The reference of Article 460 of the Bihar Education Code by the Division Bench which was only a compilation of the circulars of the Education Department was made in order to test the proposition advanced by the counsel for the State in that case and it was held that the training degree obtained by a candidate in West Bengal could not be said to be unsuitable for the purposes of appointment as a trained teacher in a Primary School. 13. As a matter of fact from the ratio of the said judgment it would be clear that not only the case decided by the Division Bench was with regard to teachers of Primary School where the requirement of being B.Ed. was not the condition precedent but also related to a non-statutory Rule where being a 10 trained matriculate was only requirement without specifying nature of teachers training course. Such is not the position in the present case relating to appointment of teachers in High School under 2006 Rules where completing two years teachers training course from a recognized institution is a condition precedent and essential qualification. Thus, the ratio of the Division Bench judgment in the case of Mahendra Prasad Mehta (supra) is quite distinguishable and cannot be made applicable to the case of the petitioners. 14. As noted above, there is no averment in the writ application that the training course undergone by the petitioners is recognized by the National Council of Teachers Education (NCTE) or the institute, namely, All India Correspondence Coaching Society has a recognition and approval of NCTE. In absence thereof this Court would find it difficult to issue a direction for treating the training qualification of the petitioners to be equivalent for appointment on the post of teacher in the State of Bihar. 15. That being so, this Court does not find any error in the approach of the 11 respondents in not recognizing the training course undergone by the petitioners from All India Correspondence Coaching Society. As a matter of fact the certificate produced by the petitioners would itself go to show that it was not a recognized institution by NCTE when they had undergone and passed such examination in the year 2001. From those certificates it would appear that the petitioners had not even completed the Bachelor of Education Course (B.Ed.), inasmuch as they are said to have appeared in some Senior Teachers Training Course and had passed the examination from All India Correspondence Coaching Society. 16. The issue as to whether Senior Teachers Training Course is equivalent to Bachelor of Education Course again cannot be gone into by this Court by delving into the aspect of equivalence of qualification and this exercise cannot be undergone within the limited parameters of Article 226 of the Constitution of India. Reference in this connection may be made to a Division Bench judgment of this Court in the case of Satyendra Singh & ors. vs. Sanjay Kumar & ors., reported in 2001(1) PLJR 104, wherein it 12 has been held as follows: “12. Prescribing qualification for a particular post by the competent authority is a policy decision. The Government frames a policy after taking into consideration the number of facts and circumstances, expert opinion and other relevant considerations. The power of judicial review in such matters is limited. The Court can interfere only when the authorities have acted arbitrarily or in violation of the statutory or constitutional provisions. The Court does not sit as an appellate forum in disguise over the policy matter. It has no power to re-frame the policy matter and in case the policy matter is found suffering from any legal infirmities as indicted above, then the same is to be struck down and the matter is sent to the authority to consider the policy matter in accordance with law laid down. If the rules have been framed prescribing the qualification for a particular post, the Court has no power to re-frame the rules or supplement the rule by adding additional qualification for the simple reason that this is a function of the appointing and in the case of any legal lacuna the Court can only direct the appointing authority to consider the matter on the basis of the expert opinion and other relevant consideration. The Court cannot on the basis of the documents appended with the affidavit determine the equivalence or addition of qualification in the recruitment rules. 15. Thus, the law is settled that when the recruitment rules provide for a requisite qualification and the question arises as to whether any other qualification is equivalent to the qualification prescribed in the recruitment rules or not, then that question has to be decided by the competent authority and the Court cannot amend the rule or reframe it and the Court can only direct the concerned authority to re-examine the matter specially in a technical matter, like this, after obtaining the expert’s opinion. The Court cannot take a final 13 decision on the basis of affidavit and the opinion of the expert and decide such matter. The power of judicial review in such a matter is very limited and in case if the State Government decides the matter and the same is found to be arbitrary, mala fide then the Court will consider the same keeping in view the scope of judicial review in such matter. 18. The question involved in the case relates to filing up technical posts and as such it cannot be decided on the basis of certain documents appended with the affidavit by the Court in view of the settled law regarding the power of judicial review by the Apex Court in such matter. In that view of the matter, the learned Single Judge was not justified in deciding the question that qualification possessed by respondent no. 1 was equivalent to the qualification prescribed in the Recruitment Rules inasmuch as that amounts to amending the rules and re-framing the rules which is not permissible in law…” 17. The laying down of qualification for appointment on the post is exclusively in the hands of the employer and the interference of the Court by way of judicial review is very limited. A similar Rule alike present Rule 4 fell for interpretation in the case of Parvez Alam & ors. vs. the State of Bihar & ors., reported in 2009(2) PLJR 213, wherein the Division Bench had held as follows: “16. We are of the opinion that the basic qualification needed for appointment, primarily needs to be decided by rule making authority. While amending Rule 8 of Rules 2006 by Rule 4 of Rules 2008 the State Government in exercise of its rule making power has excluded the qualification of degrees 14 in language, including Up-shastri or Maulvi. In such situation this Court in exercise of its power of judicial review cannot term the same to be arbitrary. The purported similarity in the curriculum of the Intermediate examination and Up-Shastri/Maulvi examination is of no consequence. It is well settled that qualification for appointment is a matter within the domain of the body, which is competent to make that legislation. Simply because in earlier years persons holding the qualification of Maulvi and Up-shastri were considered eligible in terms of the rule, later on, the plea that such persons cannot be excluded from consideration by making amendment in the rule in accordance with law does not commend us. Here the rules have been amended in accordance with law and the authority conferred with the power making rule has by the offending rule, specifically excluded the qualification of Maulvi and Up-Shastri, rendering persons holding such qualification ineligible. The plea that contents of the teaching of Up-Shastri and Maulvi is the same as that of Intermediate, we are of the opinion that it is not within the scope of judicial review and is a matter of legislative policy. 16. The view which we have taken finds support form a Division Bench judgment of this Court in the case of Dhirendra Kumar Singh & Ors. Vs. State of Bihar & Others [2008(1)PLJR 583] in which it has been held as follows:- Whether the rules governing recruitment for any post, in eligibility criterion prescribed for the post must include other equivalent qualification is a matter of legislative policy and not for this Court to decide. Even where rules provide for alternate to main and substantive qualification by recognizing equivalent qualification to be taken into consideration, the question of considering any qualification, is a matter of expert body to decide. Therefore, it is inept for this Court to 15 enter into that territory and decide upon equivalence. From a plain reading of the provision contained in 1983 rules, it would appear that various teacher’ training courses referred therein are training qualifications of different grades and cannot by any means be equivalent with each other, a priori. It hardly needs an argument that unless the matter is examined by any expert body, ordinarily, a diploma course is not equivalent for a degree. Likewise, a certificate by itself is not equivalent to a degree or diploma in the subject. Learned counsel for the petitioners had taken pains to explain the content of training of teaching under different training courses for the purpose of impressing upon the Court that there is hardly any distinction between different courses of training imparted to a candidate. We are afraid, this is not the scope for judicial review while examining the validity of the legislation providing eligibility criteria. Thus is a matter of legislative policy and it is within the domain of the legislative body as to what should be the policy to provide requisite qualification for offering appointment to the intending incumbent.” 18. Yet again a Division Bench of this Court to which I was also a party in the case of the State of Bihar & ors. vs. Mamta Kumari & ors., reported in 2010(4) PLJR 318, as with regard to equivalence of degree or qualification granted by Hindi Sahitya Sammelan, Allahabad, had held to be not qualified for appointment on the post of teacher in the State of Bihar. 16 19. Thus, having given anxious consideration to the issues involved in this writ application it must be held that the petitioners are not entitled for any relief. 20. That being so, this writ application is wholly misconceived and is, accordingly, dismissed. Ranjan (Mihir Kumar Jha, J.)