IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP–(T) No.52/2008 Reserved on: 25.3.2009 Decided on:2.4. 2009 Kanta Devi. …Petitioner. Versus The Himachal Pradesh Financial Corporation and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. P.P. Chauhan, Advocate. For the Respondents : Mr. Ashwani Kumar Sharma, Advocate for respondent No.1. Respondent No.2 in person. Rajiv Sharma, J. Brief facts necessary for the adjudication of this petition are that the petitioner was appointed as a Peon-cum-Chowkidar in the respondent- corporation on 19.3.1996. The post of Peon-cum-Chowkidar is in the feeder cadre for the post of Clerk. The promotion to the post of Clerk is regulated by the Recruitment and Promotion Rules framed by the respondent-corporation (Annexure P-3). The promotion from “C-Staff” is to be considered by the competent authority, subject to possessing of requisite qualification and fitness to be determined by the Selection 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 Committee. It is not disputed at the Bar that the minimum qualification for promotion to the post of Clerk is also matriculation. The petitioner had put in three years service and had become eligible for promotion on 18.3.1999. The respondent-corporation took a decision in the month of January, 1998 to fill up three posts of Clerks on direct recruitment basis. These three posts fell vacant during October, 1996 to September, 1997 due to promotion of three Clerks to the post of Junior Assistants. The petitioner made a representation to the respondent-corporation on 30.6.1999 seeking promotion to the post of Clerk. Three more posts of Clerks became available in February, 2000 to April 2000 after the promotion of three Clerks to the post of Junior Assistants. The corporation took a decision to fill up only one post of Clerk on direct recruitment basis out of three posts for which requisitions had already been invited from the employment exchanges. The corporation again took a decision in July, 2000 to fill up one post of Clerk on promotion basis out of three posts of Clerks which fell vacant in February, 2000 to April, 2000. The petitioner was considered along with respondent No.2 for promotion to the post of Clerk. The Departmental Promotion Committee was held on 21.7.2000. Respondent No.2 was promoted to the post of Clerk on the basis of the recommendations made by the Departmental Promotion Committee. Mr. P.P. Chauhan, Advocate has strenuously argued that respondent No.2 was not eligible for being considered for promotion for the post of Clerk. He has also contended that respondent No.2 was not possessing the minimum requisite qualification of matriculation as stipulated in the Recruitment and Promotion Rules. Mr. Ashwani Kumar Sharma, Advocate has submitted that though respondent No.2 was not possessing the qualification of matriculation, 3 however, he had appeared in the Bachelor of Arts (B.A.) final examination from the Indira Gandhi National Open University in the month of June, 1998 and the result was declared in the month of September, 1999. Respondent No.2 has appeared in person and adopted the arguments of Mr. Ashwani Kumar Sharma. He has only contended that he has been further promoted to the post of Assistant during the pendency of this petition. I have heard the learned counsel for the parties and perused the record carefully. The petitioner was appointed as a Peon-cum-Chowkidar on 19.3.1996. He had completed three years on 18.3.1999. The respondent- corporation did not fill up the post in question by way of promotion, which became available from October, 1996 to September, 1997. Three more posts of Clerks became available in February, 2000 to April, 2000. The corporation had decided to fill one post of Clerk on direct recruitment basis on the basis of decision arrived at in the month of May, 2000. The decision to fill up the posts by way of promotion was only taken in the month of July, 2000. The Departmental Promotion Committee made the recommendations on 21.7.2000. The name of respondent No.2 was recommended by the Departmental Promotion Committee for promotion. The question which has fallen for consideration before the Court is: Whether respondent No.2 was eligible for being considered for promotion though he was not possessing qualification of matriculation. Mr. Ashwani Kumar Sharma, Advocate has produced the recommendations made by the Departmental Promotion Committee dated 21.7.2000. It is evident from the perusal of the recommendations made by the Departmental Promotion Committee that matriculation was the minimum qualification required to be possessed by the candidates to be considered for 4 promotion for the post of Clerk. Respondent No.2 admittedly was not possessing matriculation qualification. He has passed his Bachelor of Arts examination in the month of September, 1999 from Indira Gandhi National Open University. Mr. Ashwani Kumar Sharma has argued that respondent No.2 was possessing higher qualification and his case has rightly been considered by the Departmental Promotion Committee. This question had fallen for consideration before their Lordships of the Hon’ble Supreme Court in P.M. Latha and another versus State of Kerala and others, (2003) 3 SCC 541. In this case, the qualification prescribed for the post in the advertisement was “passed in TTC” (Trained Teacher Certificate). However, instead of selecting holders of TTC, those holding B.Ed. degree were selected. The B.Ed. is a higher qualification than the TTC. Their Lordships have held that B.Ed. degree holders could not necessarily be held to be holding qualification suitable for appointment as teachers in primary schools. Their Lordships have held as under: 10. We find absolutely no force in the argument advanced by the respondents that B.Ed. qualification is a higher qualification than TTC and therefore, the B.Ed. candidates should be held to be eligible to compete for the post. On behalf of appellants, it is pointed out before us that Trained Teachers Certificate is given to teachers specially trained to teach small children in primary classes whereas for B.Ed. degree, the training imparted is to teach students of classes above primary. B.Ed. degree holders, therefore, cannot necessarily be held to be holding qualification suitable for appointment as teachers in primary schools. Whether for a particular post, the source of recruitment should be from the candidates with TTC qualification or B.Ed. qualification, is a matter of recruitment policy. We find sufficient logic and justification in the State prescribing qualification for post of primary teachers as only TTC and not B.Ed. Whether B.Ed. qualification can also be prescribed for 5 primary teachers is a question to be considered by the authorities concerned but we cannot consider B.Ed. candidates, for the present vacancies advertised, as eligible. Similarly, their Lordships of the Hon’ble Supreme Court in Yogesh Kumar and others versus Government of NCT and others (2003) 3 SCC 548 have held that consideration of qualification other than prescribed qualification was not proper. Their Lordships have held that recruitment to public services should be made strictly in accordance with the terms of advertisement and the recruitment rules. Their Lordships have not approved the decision of the State to appoint B.Ed. teachers against the persons holding TTC qualification. Their Lordships have held as under: “8. This last argument advanced also does not impress us at all. Recruitment to Public Services should be held strictly in accordance with the terms of advertisement and the recruitment rules, if any. Deviation from the Rules allows entry to ineligible persons and deprives many others who could have completed for the post. Merely because in the past some deviation and departure was made in considering the B.Ed, candidates and we are told that was so done because of the paucity of TTC candidates, we cannot allow a patent illegality to continue. The recruitment authorities were well aware that candidates with qualification of TTC and B. Ed. are available yet they chose to restrict entry for appointment only to TTC pass candidates. It is open to the recruiting authorities to evolve a policy of recruitment and to decide the source from which the recruitment is to be made. So far as B.Ed. qualification is concerned, in the connected appeals [CA No. 1726-28 of 2001] arising from Kerala which are heard with this appeal, we have already taken the view that B. Ed. qualification cannot be treated as a qualification higher than TTC because 6 the natures of training imparted for grant of certificate and degree are totally different and between them there is no parity whatsoever. It is projected before us that presently more candidates available for recruitment to primary school are from B.Ed. category and very few from TTC category. Whether for the aforesaid reasons, B.Ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider B. Ed. candidates for the present vacancies advertised as eligible. In our view, the division bench of the Delhi High Court was fully justified in coming to the conclusion that B. Ed. candidates were rightly excluded by the authorities from selection and appointment as primary teachers. We make it clear that we are not called upon to express any opinion on any B. Ed. Candidates appointed as primary teachers pursuant to advertisements in the past and our decision is confined only to the advertisement which was under challenge before the High Court and in this appeal. The Apex Court in Dilip Kumar Ghosh and others versus Chairman and others, (2005) 7 SCC 567 has held that where the minimum qualification required was JBT/PTTC, the persons possessing B.Ed. qualification could not be given preference. Their Lordships have held as under: “The rules, as noticed above, were framed primarily for recruitment of teachers for primary school and the rules were designed to give an incentive to the teachers who are specifically trained to teach in primary schools. The rationale behind the framing of this rule is that the JBT/PTTC certificate trained teachers should be appointed so that they can impart proper education to the primary school students in terms of the aims and object with a trained hand. The rules purposely laid an emphasis that all the candidates for teachers in primary 7 schools who possessed JBT/PTTC should be appointed for the development of the child. The primary education is up to 4th standard. There is a middle education and then secondary and higher secondary education. For teaching in the primary school, therefore, one must know the child psychology and development of a child at tender age. As already noticed, the candidates like the appellants who are trained in B.Ed degree are not necessarily to be equipped to teach the students of primary class. They are not trained and equipped to understand the psychology of a child of tender age. In a recent judgment Annamalai University Rep. by Registrar versus Secretary to Government Information and Tourism Department and others, 2009 (3) Scale 293, the Lordships of the Hon’ble Supreme Court have held that there is distinction between formal and informal system of education. In this case Annamalai University has established a separate directorate for distance education offering difference courses of studies. It is in line with one followed by Indira Gandhi National Open University. One Sh. Ramesh was in possession of diploma in film technology. He had obtained M.A. degree through (Open University System) OUS without passing Bachelor degree. The Division Bench of Madras High Court held that Ramesh was not eligible to be considered for the post of Principal. The SLP preferred by Annamalai University was dismissed by the Hon’ble Supreme Court and the decision of the Madras High Court was upheld. In the present case also, respondent No.2 had obtained B.A. degree from Indira Gandhi National Open University through distance education system. He was not possessing the requisite qualification of matriculation at the time when the Departmental Promotion Committee made its recommendations in the month of July, 2000. In view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court in 8 above citied cases, it can safely be held that the candidates to be considered for fresh appointment or by way of promotion must possess the minimum qualification prescribed in the rules. The degree obtained by the petitioner from Indira Gandhi National Open University in view of the law laid by their Lordships in 2009 (3) Scale 293 (supra) cannot be treated as substitute for minimum qualification of matriculation as envisaged under the rules. The petitioner was possessing the qualification of matriculation at the time when the Departmental Promotion Committee was held in the month of July, 2000. He has been ignored and respondent No.2 has been considered for promotion on the basis of degree obtained from Indira Gandhi National Open University as well as on the basis of his seniority. Respondent No.2 lacked requisite essential qualification of matriculation. He has been wrongly considered for promotion to the post of Clerk. His promotion to the post of Clerk is declared invalid. However, he has earned one more promotion during the pendency of this petition. In view of the facts and circumstances of this case and after taking into consideration the period which has elapsed between 2000 till 2009 it would not be desirable to disturb the promotion of respondent No.2 as Clerk and subsequent promotion to the post of Assistant. Moreover, the petitioner has not assailed the promotion of the petitioner, which he has earned during the pendency of this petition as Assistant. However, to balance the equities, the respondent-corporation is directed to consider the case of the petitioner for promotion to the post of Clerk from the date, respondent No.2 was considered i.e. in the month of July, 2000. Mr. Ashwani Kumar Sharma, Advocate has apprised the Court that three vacancies of Clerks are lying vacant in the respondent-corporation. In case the petitioner is found suitable for promotion, he will be entitled to all 9 the consequential benefits. It is clarified that though the promotion of respondent No.2 has been declared invalid for not possessing the essential qualification of matriculation, however, in the interest of justice, he will be permitted to discharge his duties on the basis of “on job experience” he has gained while working as a Clerk/Assistant in the respondent-corporation. With these observations the petition is disposed of. There will, however, be no order as to costs. 2.4.2009 (Rajiv Sharma ), J. *awasthi*