IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16401 of 2009 1. RAVI KANT JHA S/O LAKSHMI KANT JHA R/O VILL.- THEBHAI, P.O.- KOLWARA, P.S.- PARBATTA, DISTT.- KHAGARIA Versus 1. THE STATE OF BIHAR 2. SECRETARY, DEPTT. OF HUMAN RESOURCES AND DEVELOPMENT, GOVT. OF BIHAR, PATNA 3. DIRECTOR, SECONDARY EDUCATION, DEPTT. OF HUMAN RESOURCES AND DEVELOPMENT, GOVT. OF BIHAR, PATNA 4. SECRETARY, DEPTT. OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVT. OF BIHAR, PATNA 5. DISTRICT EDUCATION OFFICER-CUM-SECRETARY, DISTRICT COUNCIL, KHAGARIA 6. DEPUTY DEVELOPMENT COMMISSIONER, KHAGARIA 7. DISTRICT TEACHER APPOINTMENT APPELLATE AUTHORITY, KHAGARIA, THROUGH ITS MEMBER ----------- For the Petitioner:- Mr. Ashok Kumar Choudhary & Anil Kr. Tiwari,Advs. For the State:- G.P.XXI 3 31.3.2010 Heard counsel for the petitioner and the State. Counter affidavit has been filed on behalf of the State. Petitioner had passed Matriculation, Intermediate and also obtained Sahitya Alankar degree from Hindi Vidyapith Deoghar, which is equivalent to Graduate degree. He also passed B.Ed. (teachers training) from a recognized institution. An advertisement was published inviting applications for the post of teachers in District Board, Secondary and Higher Secondary Schools. In pursuance of this advertisement, petitioner also applied. The 2 vacancies were advertised in District Board, Secondary and Higher Secondary Schools under the provisions of Bihar District Board Secondary and Higher Secondary Teachers ( Appointment and Service Conditions) Rules, 2006. Petitioner was called for counselling and finding him eligible for the post, appointment letter was issued in his favour. He gave his joining at Mathurapur High School, Khagaria as Hindi Teacher. On 11.2.2006. Two years after his appointment, an objection was filed before the District Teachers Employment Appellate Tribunal, Khagaria, alleging illegality in the appointment. This objection was registered as Appeal Case No. 51 of 2008. The Appellate authority cancelled the appointment of the petitioner placing reliance on a decision of the High Court, passed in CWJC No. 15237 of 2007. In this decision, in fact the stand taken by the State Government in paragraph 9 of the counter affidavit was rejected. The State- respondent, in its counter affidavit, though accepted that the degree of Sahitya Alankar is equivalent to Graduate degree but rejected its’ recognition as Graduate degree, for the reason that Hindi 3 Vidyapith, Deoghar is not a recognized University. The plea taken by the State was rejected and matter was referred to the concerned authority for reconsidering the case of petitioner in that writ application for his appointment on the post of teacher. The question, which needs consideration is whether Sahitya Alankar degree, obtained from Hindi Vidyapith, Deoghar can be recognized and treated equivalent to B.A., for purposes of appointment in the Secondary/Higher Secondary Schools, as per Rule 4(Ka) (ii) of 2006 Rules dealing with the eligibility criteria for appointment on the post of teacher. Bihar District Board, Secondary and Higher Secondary Teachers (Appointment and Service Conditions) Rules, 2006, under Rule 4 (Ka) (ii), provides for the eligibility criteria for appointment of teachers. Rule 4(ka) (vii) provides eligibility criteria for the post of Librarian. As per Rule 4(ka) (ii), for appointment on the post of teacher, candidate must possess Graduation degree with minimum 45% marks from any recognized University. On the other hand, as per Rule 4 (Ka) (vii) 4 the candidate, applying for the post of Librarian, must have passed graduation degree with minimum 45% marks from any recognized University. The second eligibility criteria for the post of Librarian as provided under the same Rule is that he must have a Bachelor degree in Library Science from the University recognized by the Department of State Government. CWJC No. 5429 of 2009 and 18031 of 2008 were filed challenging vires of Rule 4(Ka) (vii) dealing with the first eligibility criteria for the post of Librarian. The first eligibility criteria being graduation degree with 45% marks from any recognized University. Petitioner in this writ application has obtained Sahitya Alankar degree equivalent to graduation from Hindi Vidyapith, Deoghar, which is not a recognized University. The degree of Sahitya Alankar, though recognized by the State Government as equivalent to a degree of graduation, vide its policy decision dated 15.1.1991 for different purposes. Since, rule provided that graduation degree must be from the recognized University, without adding that it is also an equivalent degree recognized by the 5 State, as such petitioner felt it necessary to challenge this provision of the recruitment Rule. The eligibility criteria, such as, Graduation with 45% marks from a recognized University, is common, so far appointment on the post of teacher and the post of Librarian is concerned. The issue has been decided and reported in the case of Sanjay Kumar Vs. State of Bihar, 2009 (4) PLJR 1038. In the reported decision this criteria has been challenged as an arbitrary classification in between the graduates from recognized university and those having equivalent recognized degree. It had also been contended by the petitioner’s counsel that Regulations framed by the National Council for Teachers Education, in exercise of its statutory powers have laid down criteria for appointment to teachers post in educational institutions, the criteria fixed by the NCTE is graduate or equivalent degree with B.Ed. The criteria fixed by NCTE will prevail, for the reason that education is a subject in concurrent list and the State Government cannot frame any rule, in conflict with Central legislation, on the same subject. 6 In paragraph 9 of the reported decision a finding has been recorded as on the issue of Articles 14 and 16 of the Constitution of India relating to arbitrary qualification and discrimination, we are satisfied that the relevant provisions in Rule 4(ka) (vii) have become vulnerable to being declared ultra vires, unless, by interpretation we read into those provisions that equivalent graduation degree recognized by the State of Bihar shall also be part of the relevant rules together with provision relating to graduation degree from recognized University. In the counter affidavit filed by the State in para 11, it is stated that fixing the qualification for appointment is within the domain of rule making authority and the degree of Sahityalankar obtained from Hindi Vidyapith, Deoghar may be equivalent to the Graduate degree for some other purposes but that in itself does not mean that it is also a valid graduation degree of the recognized university as required by the concerned recruitment rules. Since the issue has already been decided in the 7 decision reported in Sanjay Kumar (Supra), I find that the objection, which has been raised by the State- Respondent in Para 11 of the counter affidavit has no relevance. Along with the counter affidavit another Division Bench decision of this court has been annexed in order to show that the rule making power is completely within the domain of rule framers and the Court cannot interfere in this matter. On perusal of the judgment, I find that different rule was under consideration before the Court. Rule 4 of the Bihar Panchayat Prathmik Shikshak ( Appointment & Service Conditions ) (Amendment) Rules, 2008 was under consideration and that with respect to Moulvi or Up-Shastri qualification. So far Moulvi and Up-shastri qualification, in the matters of appointment in District Board, Secondary and Higher Secondary Schools are concerned, there is already amendment in the rule. I do not find that in any way, the Division Bench decision annexed as Annexure-C to the counter affidavit has any application in the present case. The Appellate Court’s order cancelling appointment of the petitioner by order 8 dated 8.8.2009, on irrelevant consideration, misinterpreting the decision of the High Court in CWJC No. 15237 of 2007 is fit to be quashed. For the reasons stated above, the order dated 8.8.2009 passed by the Appellate Authority in Appeal No. 51 of 2008 is quashed. The respondent authorities are directed to reinstate the petitioner on his post with all consequential benefits. The reinstatement order must be issued within a period of two weeks from the date of production/communication of this order. (Mridula Mishra,J.) A.Kumar