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Saturday, 18 February 2012


Court No. - 33
Case :- WRIT - A No. - 71558 of 2011
Petitioner :- Seeta Ram
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Siddharth Khare, Ashok Khare
Respondent Counsel :- C.S.C., Suresh Singh
Hon'ble Sudhir Agarwal, J.
1. Heard Sri Ashok Khare, learned Senior Advocate, and perused
the record.
2. Petitioner is challenging advertisement dated 29/30.11.2011 as
also Rule 14 (3) of U.P. Basic Education (Teachers) Service Rules,
1981 (hereinafter referred to as “Rules, 1981”). It is contended that
National Council for Teachers Eduction (hereinafter referred to as
“NCTE”) provided minimum qualification for appointment on the post
of Assistant Teacher in Primary Schools and passing of Teacher
Eligibility Test (hereinafter referred to as “TET”) conducted by
appropriate Government in accordance with the guidelines given by
NCTE was made essential qualification. Pursuant thereto the State
Government conducted TET on 13.11.2011 result whereof was
declared on 25.11.2011. Petitioner passed said test. In the meantime,
Rules,1981 were amended by notification dated 9.11.2011 vide U.P.
Basic Education (Teachers) Service (Twelfth Amendment) Rules,
2011 which came into force at once. It made amendment in Rules 8,
14, 27 and 29. Rule 8 was with reference to qualifications and Rule 14
with reference to procedure to be followed for recruitment for
appointment on the post of Assistant Teacher in Primary Schools. The
amendment incorporates TET as a part of essential qualification
besides others and Rule 14 (3) provides that a list of the candidates of
such persons who appear to possess prescribed academic qualification
and eligible for appointment shall be prepared wherein their names
shall be arranged in such manner that their names are placed in the
descending order on the basis of marks in Teacher Eligibility Test
conducted by Government of Uttar Pradesh. Pursuant to the said
amendment in the Rules, an advertisement was published on
29/30.11.2011 for selection for appointment to the post of Assistant
Teacher in Primary School which is consistent to the said amendment
in the Rules. Sri Khare submitted that TET is one of the qualifying
examination prescribed by NCTE and the process of such examination
commenced before 13.11.2011 pursuant whereto the examination was
held on 13.11.2011 and the result was declared on 25.11.2011. For the
purpose of making selection and appointment as Assistant Teacher the
said qualification cannot be made a basis/foundation particularly
considering the process of the said test as it amounts to change of rules
of the game when the game has already commenced and in support
thereof placed reliance on judgements of this Court in K. Manjusree
Vs. State of Andhra Pradesh and another (2008) 3 SCC 512 and
Hemani Malhotra Vs. High Court of Delhi (2008) 7 SCC 11.
3. He further submitted that a qualifying test cannot be made sole
basis for selection to the post of Assistant Teacher and in this regard
placed reliance on a Full Bench Judgement in Uma Shankar Singh &
others Vs. Chairman, Public Service Commission (1994) 2
UPLBEC 1412 and Apex Court decision in Andhra Pradesh Public
Service Commission Vs. Baloji Badhavath & others (2009) 5 SCC
4. However, I find no force in the submission.
5. The examination held by State Government, i.e. TET, 2011 is
pursuant to Regulations framed by NCTE under the provisions of
Right to Education Act, 2009 and it only confers a qualification upon a
candidate so as to make him eligible to participate in the process of
recruitment whenever it commences for appointment to the post of
Assistant Teacher. The advertisement dated 29/30.11.2011 is not a
commencement of the process of recruitment pursuant to Rules,
1981(as amended) for appointment to the post of Assistant Teacher.
Training prescribed therein i.e. six months special training is pre
appointment training contemplated under the Regulations framed by
NCTE and has nothing to do with the process of recruitment in service.
It shall commence with the advertisement published as contemplated
in Rule 14 of Rules, 1981. It is in these circumstances, it cannot be
said that rules of the game have been changed afterwards inasmuch the
two processes cover different fields and operate totally differently.
6. In K. Manjusree (supra) a selection was held but during the
process of selection, criteria for selection was changed. It is in these
circumstances, the Apex Court said that the Rules of game cannot be
changed afterwards i.e. after the interview was over. Similar was the
position in Hemani Malhotra (supra) and both the judgements,
therefore, have no application to the facts of this case.
7. In Uma Shankar Singh (Supra), it was clearly prescribed that
the preliminary examination is a mere screening test and that being so
this Court held that it cannot be included for the purpose of final
examination. The judgement has no application to the present case.
8. In Baloji Badhavath (supra), it was held that a procedure
evolved for laying down mode and manner for consideration of a right
to be considered for appointment can be interfered with only when it is
arbitrary, discriminatory or wholly unfair, which learned counsel for
petitioner failed to prove in the case in hand and, therefore, reliance
placed thereon is totally misconceived.
9. So far as making of qualifying examination basis of selection is
concerned, it is always permissible to the rules framing authority to
determine the criteria for selection which may base on the merits of the
candidate possessed in various academic qualifications or qualifying
test or any other criteria which may otherwise be valid and once it is so
determined, unless it can be said that the same amendment in the rule
is contrary to any statutory provision or otherwise ultra vires or
vitiated in law, the same cannot be interfered.
10. In the result, writ petition lacks merit. Dismissed.
Dt. 12.12.2011