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Ranjeet Kumar Yadav vs The State Of Bihar & Ors on 10 February, 2012

Patna High Court - Orders Patna High Court - Orders Ranjeet Kumar Yadav vs The State Of Bihar & Ors on 10 February, 2012 IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil

======================================================

Writ

Jurisdiction

Case

No.1938

of

2012

1. Ranjeet Kumar Yadav Son Of Chandra Balai Prasad Yadav Resident Of Village-Kandhwara, P.O.-Siwan,

P.S. Siwan Mufasil, District-Siwan

Versus

Petitioner/s

1. The State Of Bihar Through The Chief Secretary, Bihar, Patna

2. The Principal Secretary, Education Department, Government Of Bihar, Patna

3. The Union Of India Through The Principal Secretary, Department Of School Education And Literacy, New

Delhi

4. The National Council For Teacher Education Through The Member Secretary, (Wing-2), Hans Bhawan, 1

Bahadur Sah Jafar Marg, New Delhi

5. The Regional Director, Ncte, Eastern Regional Committee (Erc), 15-Neel Kanth Nagar, Naya Pali,

Bhuwaneshwar Orrisa

6. The Chairman, Bihar School Examination Board, Patna

7. The Secretary, Bihar School Examination Board, Patna

Respondent/s

====================================================== with

Civil Writ Jurisdiction Case No.1879 of 2012

1. Awadhesh Kumar Son Of Lal Babu Singh Resident Of Village Bangra, Sri Kant, P.O. Dindayalpur, P.S. -

G.B. Nagar, Tarwara, District - Siwan

Petitioner/s

Versus

1. The State Of Bihar , Through The Chief Secretary, Bihar, Patna

2. The Principal Secretary, Education Department, Government Of Bihar, Patna

3. The Union Of India Through The Member Secretary, National Council For Teacher Education , (Wing -2),

Hans Bhawan, Bahadur Sah Jafar Marg, New Delhi

4. The Regional Director, Ncte, Eastern Regioanl Committee (Ecr) 15-Neel Kanth Nagar, Naya Pali,

Bhuwaneshwar Orrisa

5. The Chairman, Bihar School Examination Board, Patna

6. The Secretary, Bihar School Examination Board, Patna

Respondent/s

Ranjeet Kumar Yadav vs The State Of Bihar & Ors on 10 February, 2012

====================================================== Appearance :

(In CWJC No.1938 of 2012)

For the Petitioner/s : Mr. Chitranjan Sinha, Senior Adv. Mr. Ranjeet Kumar, Adv.

Mr. Ranjeet Kumar, Adv.

Mr. Dilip Kumar, Adv.

Mr. Kundan Kumar, Adv.,

For the State: Mr. Lalit Kishore (AAG-1), Senior Adv. For the N.C.T.E. Mr. S.N. Pathak, Adv. For the Bihar School Examination Board: Mr. Manish Kumar, Adv. 2 Patna High Court CWJC No.1938 of 2012 (2) dt.10-02-2012 2/8

====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA

ORAL ORDER

2 10-02-2012 Heard learned counsel for the petitioners, Additional Advocate General No. 1 on behalf of the State, the Bihar School Examination Board (hereinafter referred to as the 'Board') and Shree Pathak for N.C.T.E. The facts and questions of law for consideration in the two applications being common, they have been heard together and are being disposed by a common order. The petitioners, Graduates with B.Ed qualification are applicants for the post of Secondary School Teachers under Advertisement No. 36 of 2011 published on 28.8.2011. The eligibility test is scheduled for 17.2.2012. The writ applications have been filed on 23.1.2012. Learned counsel for the petitioners submits that they are aggrieved with the Advertisement to the extent it permits applicants from Bihar to be considered for appointment on the post of Secondary and Senior Secondary Teachers provided they are Graduates and Post Graduates respectively, irrespective of the fact that they do not hold a B.Ed qualification from a institution recognized under the N.C.T.E. Act and grants relaxation to obtain the trained qualification within five years of appointment. It is submitted that the Central Government has issued notification on 1.6.2011 under Section 23(2) of the 3 Patna High Court CWJC No.1938 of 2012 (2) dt.10-02-2012 3/8

Right of Children to Free and Compulsory Education Act, 2009, at the request of the State Government dated 1.3.2011, for appointment of untrained teachers at the elementary level from Class-I to VIII relaxing the norms fixed by the N.C.T.E. vide Gazette notification dated 25.8.2010 for a period till 31st March, 2015. No such exemption has been granted much less sought for appointment of Secondary and Senior Secondary School teachers. Even if the N.C.T.E. regulations dated 3.9.2001 at Clause-5 contain a power of relaxation, the respondents should have sought such relaxation before publishing the Advertisement. They cannot be permitted adopt a procedure contrary to the law and then contend that they shall be seeking an exemption for regularizing the advertisement. It is a presumptive state of affairs. The N.C.T.E may or may not grant the relaxation. The petitioners stand to be prejudiced in the meantime at the competitive eligibility test. If relaxation was sought for the elementary level, there has to be a justification put forth for not seeking such relaxation with regard to the Secondary and Senior Secondary level before publication of the Advertisement. The Advertisement on the face of it being contrary to the statutory provisions of the N.C.T.E. Act should be struck down by the Court to that extent. It was lastly submitted that the respondents have themselves postponed the examination from the earlier scheduled in November, 2011. Nothing 4 Patna High Court CWJC No.1938 of 2012 (2) dt.10-02-2012 4/8

Ranjeet Kumar Yadav vs The State Of Bihar & Ors on 10 February, 2012

prevents them from postponing it further, obtaining relaxation and then proceeding with the eligibility test for appointment at the Secondary and Senior Secondary level. Learned Additional Advocate General No. 1 submitted that there are approximately 15,000 vacancies of Teachers in the State at the Secondary and Senior Secondary level. A policy decision has been taken to de-link +2 stage from colleges and thus a large scale need of teachers. The new academic calendar is to commence soon. At this stage to put the test on hold for Secondary and Senior Secondary level, approach the N.C.T.E., obtain relaxation and then proceed, will unnecessary delay matters and may affect the programme of the State Government for popularizing and disseminating education. The present examination is an eligibility test only. Those successful will become eligible to be considered for appointment in accordance with Rules framed by the State Government.

Additional Advocate General No. 1 further states at the Bar that he has instructions to submit that the State Government after publication of the Advertisement has applied to the N.C.T.E. for grant of relaxation at the Secondary and Senior Secondary level also. It is next submitted that the writ application is belated. If the Advertisement was published on 28.8.2011, the petitioners should have moved with much more promptness. The Court 5 Patna High Court CWJC No.1938 of 2012 (2) dt.10-02-2012 5/8

may not interfere at this stage when the public examination is at the door. A large number of candidates have applied and any interference at this stage may complicate matters for the State Government further. It was lastly submitted that even at the stage of appointment the petitioners who claimed to be trained shall not be affected in any manner as the State shall necessarily be required to consider trained candidates for appointment first.

The submissions reveal that the State Government has been granted relaxation by the Central Government of the norms fixed for appointment of teachers by the N.C.T.E., but only for elementary teachers with regard to Class-I and VIII. It is not in controversy on facts that as of the date that the Advertisement was published no relaxation had been applied for much less granted by the Central Government or the N.C.T.E. for appointment of untrained teachers at the Secondary and Senior Secondary level. The fact that there may be a Clause under the N.C.T.E. regulations dated 3.9.2001 to grant relaxation, cannot vest a right in the State Government to publish an Advertisement and when questioned urge that they shall or have subsequently sought exemption. Exemption not being a matter of right no such action is permissible under a presumptive state of affairs. That is putting the cart before the horse. Fairness required the State Government to apply 6 Patna High Court CWJC No.1938 of 2012 (2) dt.10-02-2012 6/8

for exemption and then publish the Advertisement after grant of the same in like manner as done at the Elementary level. The application for exemption does not amount to an exemption granted. The relaxation may be granted may not be granted. The State Government cannot act presuming a state of affairs which does not exist in reality. The action of the State Government in publishing the Advertisement inviting applications from untrained candidates at the Secondary and Senior Secondary level contrary to N.C.T.E. guidelines, and requiring them to obtain such qualification within the next five years of appointment is not in conformity with the law.

The object and the desire of the State Government to expedite education and dissemination of knowledge by appointment of teachers is laudable. Time lost has to be made up. But no matter how laudable the object, it has to be within the boundary of the law. The ends shall not justify the means. It would have been better if the State Government had followed the procedure of obtaining relaxation first and then published the Advertisement in like manner as it did for the Elementary level.

But keeping in mind that the State Government has already applied for exemption to the N.C.T.E., as was submitted by the Additional Advocate General No. 1, the Court refrains from striking down the Advertisement with 7 Patna High Court CWJC No.1938 of 2012 (2) dt.10-02-2012 7/8

Ranjeet Kumar Yadav vs The State Of Bihar & Ors on 10 February, 2012

regard to Secondary and Senior Secondary level teachers. Undoubtedly, the exercise carried out by the State Government for recruitment over the entire State has to be a mammoth exercise. The examinations are now at the door. Authorizations relevant for sitting at the examination undoubtedly must have been issued to the candidates by now. Any order of the Court at this stage will create its own problems when such untrained candidates given authorization to appear shall come to the examination centre and then be told that they are not permitted to appear. The Court cannot keep itself unmindful of the realities of the situation that shall then occur on the spot. The Court would like to avoid such a rigid interpretation. Needless to state that the candidature of any untrained candidate at such eligibility test for the Secondary and Senior Secondary level shall have to remain subject to the outcome of the orders that may he passed by the N.C.T.E. on the request for exemption stated to have been made by the State Government. If exemption is declined such candidates cannot be considered for appointment.

Learned Additional Advocate General No. 1 further submits that he has instructions to state that if relaxation is not granted by the N.C.T.E. for appointment of teachers at the Secondary and Senior Secondary level of untrained persons, the State Government shall refund the application fees 8 Patna High Court CWJC No.1938 of 2012 (2) dt.10-02-2012 8/8

collected by it from all untrained candidates for the two categories irrespective of the fact whether they have passed or did not pass the eligibility test.

In light of the aforesaid discussion, the Court declines to interfere with the examination or strike down the Advertisement as urged.

The writ application stands disposed.

P. Kumar/- (Navin Sinha, J)