UTET :IN THE HIGH COURT OF UTTARAKHAND AT NAINTAL SPECIAL APPEAL NO. 390 OF 2014
IN THE HIGH COURT OF UTTARAKHAND AT NAINTAL SPECIAL APPEAL NO. 390 OF 2014
State of Uttarakhand and another.
Mr. U.K. Uniyal, Advocate General with Mr. Subhash Upadhyay, Chief Standing
Counsel for the State of Uttarakhand / appellants.
Mr. K.P. Upadhyay, Advocate for the respondent.
Mr. Paresh Tripathi, Advocate for the interveners.
SPECIAL APPEAL NO. 394 OF 2014
Mahendar Singh & others.
Keshavanand Jhaldiyal & others.
Mr. Anil Kumar Bisht, Advocate for the appellants.
Mr. K.P. Upadhyay, Advocate for respondent no. 1.
Mr. U.K. Uniyal, Advocate General with Mr. Subhash Upadhyay, Chief Standing
Counsel for the State of Uttarakhand / respondent nos. 2 and 3.
SPECIAL APPEAL NO. 395 OF 2014
Deepak Kumar & others.
State of Uttarakhand and another.
Mr. Rakesh Thapliyal & Mr. Pankaj Chaturvedi, Advocates for the appellants.
Mr. U.K. Uniyal, Advocate General with Mr. Subhash Upadhyay, Chief Standing
Counsel for the State of Uttarakhand / respondent nos. 1 and 2.
Mr. K.P. Upadhyay, Advocate for respondent no. 3.
SPECIAL APPEAL NO. 411 OF 2014
Surendra Kumar and others.
Keshavanand Jhaldiyal & others.
Mr. Paresh Tripathi, Advocate for the appellants.
Mr. K.P. Upadhyay, Advocate for respondent no. 1.
Mr. U.K. Uniyal, Advocate General with Mr. Subhash Upadhyay, Chief Standing
Counsel for the State of Uttarakhand / respondent nos. 2 and 3.
Hon’ble K.M. Joseph, C.J.
Hon’ble V.K. Bist, J.
K.M. Joseph, C.J.
Since these Appeals involve common questions of law and facts, we are disposing of the same by this common judgment.
Appellants are the State of Uttarakhand as well as the private individuals. The writ petitioner (hereinafter referred to as the petitioner) filed the writ petition seeking the following reliefs:
“(i) Issue a writ, order or direction in the nature of certiorari calling for the records and quashing the
advertisement dated 1st February 2014 (Annexure No. 9 to the writ petition) issued by the Director,
Elementary Education, Uttarakhand for selection to the post of Assistant Teacher in various Govt. Primary Schools of the State, as the same is contrary to the Service Rules.
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to hold the
selection for the post of Assistant Teacher in various Govt. Primary Schools of the State in terms of the provisions of Uttarakhand Govt. Primary Education (Teacher) Service Rules, 2012 as amended in 2013.
(iii) Issue writ, order or direction in the nature of Certiorari quashing the clause in the impugned
advertisement so far as the same provides horizontal reservation in favor of skilled sports persons,
Uttarakhand Rajya Andolankari and the dependants of Rajya Andolankari as the same being in contravention of the judgment and order passed by the Hon’ble Court.
(iv) Issue any other suitable writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case.”
3. As per the Advertisement in question, applications were invited for selection for appointment of teachers in Elementary Schools. Under the impugned advertisement, it is mentioned that
the list of selected candidates was to be prepared in descending order. In the Advertisement, it was stated that the list would be prepared not only as per the marks obtained in B.TC. or D.El.Ed or
T.E.T., but also the quality points for the marks obtained by the candidates in High School, Intermediate and Graduation.
Still further, the advertisement provides that selection would be made on year-wise basis, that is to say the person, who has obtained B.Ed. degree in earlier year will be treated as senior to the one in the list, who has obtained the same in the later year. Reservation has also been provided for sportspersons and Rajya Andolankari. As regards reservation for sportspersons is concerned, the learned Single Judge took note of the judgment of the Division Bench of this Court in
Special Appeal No. 162 of 2013 and found it to be bad. Insofar as reservation for the Uttarakkhand Rajya Andolankari is concerned, the learned Single Judge again found that there is no justification in
making reservation for them. Passing on to the year-wise seniority to B.Ed. candidates, it was found to be bereft of any logic and it was also found to diminish the criteria of merit. It was found that the
present concession, which was being made for the B.Ed. qualified candidates giving priority to those, who have done B.Ed. earlier, is totally wrong and in violation of Article 14 of the Constitution of
India. Also the criteria given in the advertisement for giving marks on the basis of the High School, Intermediate and Graduation was also found de hors the Rules. On the basis of said discussion,
appellant / State Government was directed to hold examination in accordance with
the Uttarakhand Government Elementary Education (Teacher) Service Rules, 2012 (hereinafter referred to as the Rules) and, on the basis of that, the writ petition was allowed.
Feeling aggrieved by the same that the Appeals, four in number, are before us.
4. We have heard the learned counsel Advocate General for the State of Uttarakhand / Appellants in Special Appeal No. 390 of 2014, Mr. Paresh Tripathi, learned counsel for the appellants in Special Appeal No. 411 of 2014, and also Mr. K.P. Upadhyay, Advocate for the petitioner.
5. The learned Advocate General would point out that the learned Single Judge has failed to consider that the advertisement was issued in order to fill up the vacancies of teachers by appointing
B.Ed. degree holders. He would submit that under the Rules, made in the year 2012, originally, B.Ed. holders were not qualified. He drew our attention to the Rules, which were made in the year 2012.
There was a shortage of qualified hands. There were B.Ed. degree holders, who were available. Originally, in fact, under the Right to Education Act, enacted by the Parliament, the National Council for Teachers Education was made the competent body to decide the qualifications of teachers.
It had made those qualifications by Notification dated 23.05.2010.
As per the same, B.Ed. degree holders were enabled to be appointed till 31.01.2012 provided they
had 50 per cent marks in graduation. There were proceedings, in fact, taken by the State of Uttarakhand for filling up vacancies by selecting B.Ed. degree holders. Applications were invited pursuant to advertisement dated 15.12.2011. There was a challenge to the same. The challenge was to the order dated 14.11.2011, which laid down the qualifications, pursuant to which, advertisement dated 15.12.2011 was issued. The challenge included the challenge to B.Ed. degree holders being arranged in the descending order, i.e. the earlier one getting the preference in comparison to the person, who acquired B.Ed. degree later. Learned Single Judge, it is pointed out, repelled, the challenge.
6. Though, there was an Appeal, in the Appeal, the issue was relating to district-wise selection.
Whatever that be, the Government of Uttarakhand, struggling with shortage of teachers,
approached the Government of India and the Government issued Government Order dated 27.10.2012, by which exercising power under Section 23, it extended till 31.03.2014 the power to make appointments from B.Ed. holders. It is on the basis of the same that under the executive order dated 14.11.2011, the persons’ selection was intended to be filled. In fact, it is pointed out by the learned Advocate General that there was a Government Order issued on 31.01.2014 laying down the parameters for selection and it was on the basis of that executive order that the impugned advertisement was issued.
He points out that the Government Order dated 31.01.2014, which is the basis for the present advertisement, was not challenged by the petitioner and on that short ground, the writ petitions ought to have been dismissed.
He further draws our attention to Part-10 of the Uttarakhand Government Elementary
Education (Teacher) (Amendment) Service Rules, 2013.
7. He would submit that the perusal of the same would show that B.Ed. degree holders have been rendered qualified for being appointed till 31.03.2014 and selection was proceeded on the basis
of the executive order, and there is nothing illegal in the selection.
He does not purport to disturb the findings in regard to that part of the judgment, except which sets aside the B.Ed. degree holders being given priority on the basis of year passing the B.Ed. and also
the provisions for calculating the marks.
8. Mr. K.P. Upadhyay, learned counsel for the petitioner, in response, would submit as follows.
He would submit that the petitioner has challenged the advertisement and there is no need to
challenge the Government Order dated 31.01.2014.
He would further submit that as far as giving preference to B.Ed. degree holders, who have obtained the degree earlier in point of time is concerned, it is irrational and offen the mandate of Article 14 of the Constitution of India. Mr. K.P. Upadhyay, learned counsel for the petitioner would cite the following case law:
9. Learned counsel for the petitioner would refer to Krishan Chander v. Central Tractor Organisation reported in AIR 1962 SC 602. That was a case, where a ban was imposed on a government
employee after his services were terminated in the matter of his employment under the Government. The Court took the view that his constitutional right in Article 16(1) was violated. Therein, the Court,
inter alia, took the view that so long as the ban subsisted, any application made by the petitioner for employment would be treated as waste paper.
10.Next, he would rely on Ganga Ram and others Vs. The Union of India and others reported in (1970) 1 SCC 377. That was a case, where the petitioners were officiating Clerks Grade-I and they
filed a petition claiming that seniority should be determined from the date of appointment as officiating Clerk, Grade I and not on the basis of their position in the Graduation List of Clerk, Grade II from which they were promoted. The Court took the view that the direct recruits
and the promotees like the petitioners clearly constitute different classes and the classification was based on intelligible differentia which has a reasonable connection with the object of efficiency.
11. Learned counsel for the petitioner then sought assistance also from the decision of the Hon’ble Apex Court in the case of Ram Ganesh Tripathi and others Vs. State of U.P. and others reported
in AIR 1997 SC 1446. This is to canvass the position that when selection is being done contrary to Rules, it is liable to be quashed.
12. Learned counsel for the petitioner then relied on the decision of the Hon’ble Apex Court in the case of K. Kuppusamy and another Vs. State of T.N. and others reported in (1998) 8 SCC 469. In this
case, the Hon’ble Apex Court took the view that statutory Rules cannot be overridden by the executive order or executive practice.
That is a case, where the Court took the view that the Government merely because it had taken a decision to amend the statutory rules, could not act contrary to the extant Rules and the executive order cannot override the statutory Rules. A perusal of the judgment does not show what was the relief what was sought for before the Tribunal and whose order was set aside by the Hon’ble Apex Court.
13. Learned counsel for the petitioner then relied on the decision of the Hon’ble Apex Court in DDA and others Vs. Joginder S. Monga and others reported in (2004) 2 SCC 297. In this case, the Hon’ble
Apex Court, inter alia, held as follows: “It is not a case where a conflict has arisen between a statute or a statutory rule on the one hand and an executive instruction, on the other. Only in a case of
such a conflict, the former will prevail over the latter.”
14. Next, the learned counsel for the petitioner relied on the decision of the Apex Court in Om Prakash Shukla Vs. Akhilesh Kumar Shukla and others reported in 1986 (Supp) SCC 285. In
paragraph 24, the Hon’ble Apex Court, inter alia, held as follows:
“24. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has
observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates in the district of Kanpur also. They were not responsible for the conduct of the examination.”
15. Learned counsel for the petitioner would point out that it is not a case where the petitioner had appeared for any examination or a case where the writ petition was filed only after realising certain failure in the examination.
Petitioner had merely applied.
There is no examination.
16. In fact, the learned counsel for the petitioner sought to draw support from the judgment of the Hon’ble Apex Court in the case of Radhey Shyam Singh and others Vs. Union of India and others
reported in (1997) 1 SCC 60. That is a case, where in a recruitment, zonewise separate merit lists were prepared by the Subordinate Services Commission on the basis of examination conducted in
various zones. The Court took the view that there is violation of Articles 14 and 16 and equal chance for equal marks was not observed. This is also a case, where a perusal of Paragraph 5 would
show that the Tribunal dismissed the claim of the appellants on the basis of the decision in 1986 Supp SCC 285, which we have already adverted to and found that the appellant had also appeared in the
examination. The Court, however, finding violation of Articles 14 and 16 also proceeded to hold as follows:“10. The argument advanced by the learned counsel for the respondents that this process of zonewise selection has been in vogue since 1975 and has stood the test of time cannot be
accepted for the simple reason that it was never challenged by anybody and was not subjected to judicial scrutiny at all. If on judicial scrutiny it cannot stand the test of reasonableness and
constitutionality it cannot be allowed to continue and has to be struck down. But we make it clear that this judgment will have prospective application and whatever selections and appointments have so far been made in accordance with the impugned process of selection shall not be disturbed on the
basis of this judgment. But in future no such selection shall be made on the zonal basis. If the Government is keen to make zonewise selection after allocating some posts for each zone, it
may make such scheme or rules or adopt such process of selection, which may not clash with the provisions contained in Articles 14 and 16 of the Constitution of India having regard to
the guidelines laid down by this Court from time to time in various pronouncements. In the facts and circumstances of the case we make no order as to costs. The appeals and writ
petitions are allowed as indicated above.”
17. Mr. K.P. Upadhyay would submit that the earlier practice, notwithstanding ultra vires action may not be supported.
18. As far as the advertisement being ultra vires to the statutory Rules is concerned, he would reiterate the submissions and submit that Part-10 was added to the Rules, in fact, to cater to the
persons, who were already selected pursuant to the advertisement, which was issued earlier in 2011.
He drew our attention, in particular, to Rule 31(3) and he would submit that actually, Rule
31(3) would make it clear that it is intended to facilitate the appointment of persons, who were selected earlier on the basis of certain executive orders, at a time when the Rules were not in force.
But after the statutory Rules were promulgated, he would pose the question, as to how executive orders could override the statutory Rules.
19. Learned Advocate General would point out that apart from the fact that the basic order dated 31.01.2014 has not been challenged, as to how the learned Single Judge could have directed
the selection to be made in terms of the statutory Rules, which, in essence, was contained in Rule 15 of the 2012 Rules. Rule 15 of the 2012 Rules reads as under:“15. (1) After advertising the vacancies in news papers, the appointing authority shall invite applications from the candidates possessing prescribed training qualification from the district concerned and shall scrutinize the applications
received against advertisement and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment:
Provided that for the candidate for appointment to the post referred in clause 9(a) of rule 6 for teaching Urdu, Bachelor’s degree with Urdu as one of the subject or a Master’s degree with Urdu is essential: Provided further that to test special ability to teach in specific language such as Urdu, the selection committee shall arrange a written examination which shall be of 100 marks. In written examination the candidate will be required to write an essay on a current topic in the language
in respect of which the post is to be filled. Minimum pass marks in written examination will be 50 percent and the candidate who will get the minimum pass marks will be eligible for appointment. A candidate who obtains less than fifty percent marks in the written examination shall be
disqualified for appointment.
(2) For such female candidate whose home district is changed because of marriage after selection in the training, Regional Additional Education Director (Basic) of the concerned region on her application can order to add the name of such female candidate in her new home district
which may be different district of her training.
(3) The name of candidates in the list prepared under subrule (1) shall be arranged in the descending order of qualifying marks obtained in Teacher Eligible Test (T.E.T.).
(4) No candidate shall be eligible for appointment unless his name is not included in the list prepared under sub-rule (1) and (3).
(5) This list prepared under sub-rule (1) and (3) shall be forwarded by the appointing authority to the Selection Committee.”
20. Rule 15 was amended in 2013. After amendment, Rule 15 (3) reads as follows:
“(3) The name of candidates in the list prepared under sub-rule (1) shall be arranged in the descending order of the total of 60 percent of the percentage of marks obtained in BTC / D.El.Ed
and 40 percent of the percentage of marks obtained in TET-1.”
21. He would point out that a perusal of Rule 15(3), as was amended in the year 2013, would show that it really provided that 60 per cent marks was to be allocated for B.T.C. / D.El.Ed in preparation of the list.
He posed the question as to how the direction by the learned Single Judge could be implemented. He
would submit that it is not open to the Court to add words to a Statute.
It is submitted that the learned Single Judge has not considered these aspects. Learned Advocate General submitted that the learned Single Judge, if he disagreed with the reasoning of
another learned Single Judge, he should have referred the matter to a larger Bench.
22. The response of Mr. K.P. Upadhyay to this is that indeed the fact is that selection is for B.Ed. holders and since Rule 15(3) has to be applied, the marks obtained in B.Ed. in place of marks obtained in B.T.C. must be taken into consideration. He would also submit that at any rate, the marks obtained (40 per cent) for TET which is applicable to B.Ed. degree holders also can be looked into and the list prepared.
He does not fairly dispute that a casus-omissus is to be rarely supplied by the Court, but he would submit that this may be a case, where it may have to be done. At any rate, he would submit that the Court cannot sustain the arrangement of B.Ed. degree holders in the order of the year, in which the B.Ed. degree was obtained. When he was asked as to whether there was any pleading in support of this contention that there is violation of Article 14 of the Constitution of India, he submitted that the matter is palpable. No fact finding is necessary and it is a question of merely applying the principles of Article 14 to the given fact situation.
23. Mr. K.P. Upadhyay also drew our attention to amendment brought about in the Statutory Rules in the year 2014.
24. He would, therefore, point out that the Rule making authority must be intended as governing the selection of the teachers in the on going process by making it clear that Sub-Rules (2) and
(3) of Rule 15 will apply and, therefore, the matter was beyond the region of doubt.
25. The response of the appellants is that the said proviso relates to the appointment of Urdu Teachers and, also, they pose the question as to how the amendment, which has no retrospective
effect, could affect the selection pursuant to the impugned advertisement.
26. Learned Advocate General drew our attention to judgment of the Apex Court in the case of Ramesh Chandra Shah and others Vs. Anil Joshi and others reported in AIR 2013 SC 1613. That is a
case, where the Apex Court took the view that having taken part in selection with full knowledge that the recruitment is being made under the General Rules, the respondents had waived their right to question the advertisement or the methodoogy adopted by the Board for making selection to the post of Physiotherapist.
The contention, which found acceptance, was that the respondents had taken a chance to be selected in the test conducted by the Board on the basis of the advertisement. It was a case, where they had appeared in the written examination and taken a chance to be declared as successful. The
Court held, inter alia, in para 18 as under:“18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome.”
27. The Hon’ble Apex Court, in the above case, referred to Manak Lal v. Dr. Prem Chand AIR 1957 SC 425, Dr. G. Sarna v. University of Lucknow (1976) 3 SCC 585, Om Prakash Shukla v. Akhilesh
Kumar Shukla (1986) Supp SCC 285, Madan Lal v. State of J & K (1995) 3 SCC 486, (2010) 12 SCC 576.
28. Learned Advocate General would point out, in response to the contention of the learned counsel for the petitioner, that the petitioner had not come to the Court after participating in the examination and this is not a case, where principle laid down in AIR 2013 SC 1613 will apply as the petitioner had merely applied and he had, at any rate, approached the Court at the earliest that there is no examination contemplated under the advertisement, the criteria based on which the selection was to be done was indicated clearly in the advertisement, which was made pursuant to the Government Order dated 31.01.2014.
There is only a question of application of criteria. Therefore, the petitioner when he applied pursuant to the advertisement must be taken to be aware that he was subjecting himself to the selection
process as provided in the advertisement and, therefore, it is not necessary that there should be an examination or interview after which if a party comes alone, the principle laid down in AIR 2013 SC 1613 would apply.
29. Per contra, the learned counsel for the petitioner would contend that the petitioner is from a remote area, he only applied and he has approached the Court and, therefore, the application
must be taken to have been made accompanied by protest.
Petitioner have approached not having failed to get selected.
30. The following questions would arise in our view:(I) What is the effect of Rule 31(3)?
(II) What is the effect of the petitioner not challenging the order dated 31.01.2014?
(III) What is the effect of the amendment to the Statutory Rules in the year 2014?
(IV) Whether the preference given to B.Ed. degree holders of years offends Article 14 of the Constitution of India?
(V) What is the effect of the petitioner applying pursuant to the advertisement?
31. In order to appreciate the contentions and render our decision in the matter, it is necessary to examine the historical background, which has led to the impugned advertisement. Parliament enacted The Right of Children to Free And Compulsory Education Act, 2009. Acting under Section 23 (1) of the said Act, the National Council for Teacher Education, in short NCTE, brought out Notification dated 23.08.2010. It appears to have been published on 25.10.2010. As per the same, for appointment of teachers for Classes 1 to 4, the minimum qualifications were prescribed as Senior Secondary or its equivalent with at least 50 per cent marks and two year Diploma in Elementary Education by
whatever name known among various other qualifications.
Paragraph 3, which is relevant for our purpose, provided as follows:
“3. Training to be undergone.-A person(a) With BA/B.Sc. with at least 50% marks and B.Ed.
qualification shall also be eligible for appointment for class I to V upto 1st January, 2012, provided he undergone, after appointment, an NCTE recognized 6-month special programme in Elementary Education.
(b) with D.Ed. (Special Education) or B.Ed. (Special Education) qualification shall undergo, after appointment, an NCTE recognized 6-month special programme in Elementary Education.”
32. In fact, the essential qualification, which was being followed apparently under The U.P. Basic Education Act, 1972, was graduation with B.T.C. The U.P. Basic Education Act, 1972 would
appear to have been repealed under Section 60 of the Uttarakhand School Education Act. The latter Act came into force in the year 2006. The National Council for Teachers Education Act, 1993 had
been enacted in 1993 for achieving planned and coordinated developments. Section 23 of the 2009 Act reads as follows:
“Qualifications for appointment and terms and conditions of service of teachers.—
(1) Any person possessing such minimum qualification, as laid down by the academic authority by the Central Government, by notification, shall be eligible for appointment as a teacher.
(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification: Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years.
(3) The salary and allowances payable to, and the terms and conditions of service of, teacher shall be such as may be prescribed.”
33. It was pursuant to Clauses (1) and (3) of the Notification dated 23.08.2010 that the order dated 14.12.2011 came to be issued. It, inter alia, provided for Bachelors’ degree from college /
university established under law in India, which was recognized by the UGC and who has obtained eligibility for B.Ed / B.Ed. Special Education from an Institute recognized by the National Council of
Teacher Education. It further provided that, to be eligible, a person must have passed the Teacher Eligibility Test held by the State Government or the Central Government for Class 1 to 5. Clause 8,
inter alia, provided for process of the selection / counseling. Being crucial to resolution of our dispute, we extract the same:“(8) Process of Selection / Counselling:Entire selection process shall be carried out by the Principal, District Education and Training Institute / District Resource Centre under the supervision and direction of the District Education Officer. Selection shall be made on the basis of seniority of training year and merit of quality points as under.
(b) Name of the candidates will be placed, on the basis of the total quality point marks obtained in TET and the Education and training qualification, in descending order as per seniority of their year of training. However, if the year of training and the quality points of two candidates are the same, the candidate senior in age will be given preference.
Calculation of quality points would be as under:
1. High School The percentage of Marks X 0.75
2. Intermediate The percentage of Marks X 1.5
3. Graduation The percentage of Marks X 2.25
4. Training B.Ed / D.Ed. (Special Education)
5. Theory The percentage of Marks X 3
6. Practical The percentage of Marks X 1.5
7. T.E.T. The percentage of Marks X 1
10 Combined Seniority List shall be prepared at the State level and the districts shall be allotted to the candidates on the basis of options.”
34. Thereafter, the order provides for six months special training after posting in the district-wise schools. The State Level Counseling / Selection Committee was to consist of (A) Additional
Director, SCERT, Narendra Nagar, (B) Principal, DIET nominated by the Director, Elementary Education; (C) Joint Director, SCERT, (D) one member belonging to SC / ST nominated by the Director Academic Research and Training and (E) the Deputy Director, SCERT, who was to be Member Secretary.
After successful completion of training programme approved by the NCTE, the candidate shall be given selection by the Appointing Authority of the allotted district under the provisions of the Uttarakhand Primary Education Service Act, 2012 being amended from time to time. It was pursuant to the same that the advertisement dated 15.12.2011 came to be issued and a batch of writ petitions came to be filed, which were heard by the learned Single Judge. The learned Single Judge directed, inter alia, to proceed with the selection and appointment of teachers in accordance with the advertisement dated 15.12.2011 and complete the process at the earliest. This is by judgment dated 8th May, 2012. There was an intra-Court Appeal being Special Appeal No. 360 of 2012, wherein the Court was persuaded to hold that the advertisement and the conditions so far as it imposes a restriction of ‘place of residence’ is bad and was declared as violative of Article 16 to the Constitution.
35. While so, in the year 2012, the State of Uttarakhand brought out with Uttarakhand Government Elementary Education (Teachers) Service Rules, 2012 under Notification dated 28.08.2012
in exercise of the powers under proviso to Article 309 of the Constitution of India and in continuation of the power under Section 58 of the Uttarakhand School Education Act, 2006. The following
provisions being relevant, we will refer to the same. Rule 3(a) defines the Appointing Authority. The same reads as under:
“3.(a) ‘Appointing Authority’ means Deputy Education Officer (Elementary Education) in case of Assistant Teacher, Government Primary School / Attached Primary School and District Education Officer (Elementary Education) in case of Head Teacher, Government Primary School, Assistant Teacher, Government Upper Primary School / Government Model School and Head Teacher of Government, Upper Primary School / Government Model School.”
36. ‘Government Primary School’ is defined in Rule 3(p) to mean a school imparting education from class I to V. ‘Government Upper Primary School’ has been defined in Rule 3(l) to mean a
school imparting education from class VI to VIII.
‘Selection Committee’ is defined in Rule 3(t) to be the Selection Committee constituted under rule 16 and sub-rule (1) of rule 19. ‘Teacher’ is defined in Rule 3(w) to mean Assistant Teacher / Head Master / Head Mistress of Government Primary School, Government Upper Primary School, Government Model School and Attached Primary School.
37. Rule 4 of the 2012 Rules reads as follows:
“4. These rules shall apply to :All ‘teachers employed in Government Primary Schools, Government Upper Primary Schools, attached Government Primary Schools and Model Schools in Rural Local Area and Urban Local Area, as mentioned in section 58 of Uttarakhand School Education Act,
38. he ‘source of recruitment’ is provided in Rule 6, which reads as under:-
6. The procedure of recruitment to the various categories of posts mentioned below shall be as follows:-(a) Assistant Master / Mistress By direct Government Primary School / recruitment
as Attached Government Primary School.
provided in rules 14 and 15.
(b) (c) (d)
39. Head Master / Head Mistress Government Primary School By promotion as
Assistant Master / Assistant Government Upper Primary Government Model School
Head Master / Head Government Upper Primary Government Model School Mistress
By promotion as Mistress School / By promotion as provided in rule 18 provided in rule 18
provided in rule 18.
Rule 7 deals with age; Rule 8 provides for the nationality qualifications.
40. Since we are concerned with only the appointment to the post of Assistant Teachers in a Primary School (Class I to V), we extract 9(a) of the 2012 Rules as follows:
Sl.Post Educational Qualification Assistant Master / Assistant Mistress Government
Primary School / Attached Government (i) Graduate from the University established by law in India:
Provided that for appointment of Assistant Teacher (Urdu) graduations with Urdu as a
main subject shall be compulsory.
No. (a) 17 Primary (Class I-V) School (ii) Two years Diploma in Elementary Education (D.El.Ed.)
known as B.T.C. in Uttarakhand from the concerned District Institute of Education and Training
/ District Resource Centre. and Must have passed the Teacher Eligibility Test (TET), conducted
by the State Government / Central Government in accordance with the Guidelines framed by the
NCTE for the purpose.
41.VIII. Rule 9(b) deals with Assistant Master, etc. for Classes VI to Part-V deals with procedure for recruitment. Rule 14 deals with determination of vacancies. The Appointing Authority has to
determine the number of vacancy and also the number of vacancies to be reserved for candidates belonging to Scheduled Caste, Scheduled Tribe, Other Backward Classes and to intimate to the
42.Rule 15, on which the petitioner, has built up his case, has already been extracted above.
43. The ‘Selection Committee’ is provided in Rule 16. It is to consist of Principal, District Institute of Education and Training / District Resource Centre as Chairman; District Education Officer
(Elementary Education) as Member; A Class-II Officer nominated by the Chief Education Officer as Member; the Deputy Education Officer (Elementary Education) of the concerned Block as Member
Secretary; An officer from any department of the District nominated by the District Magistrate as Member. It provides for nomination of an officer belonging to the Scheduled Castes / Scheduled Tribes, Other Backward Classes or the Minority Community to the State of Uttarakhand then by the District Magistrate. Under Rule 17, the Selection Committee under Rule 16 is to consider the candidates on the basis of list referred to in sub-rules (1) and (2) of Rule 15 and prepare a list of selected candidates in the order, in which their names appear in the merit list. If two or more candidates have equal merit points, the name of the candidate, who is senior in age, shall
be placed higher in the list. The selection committee, thereafter, is to scrutinize the certificates. It has to prepare a waiting list of candidates of each category having not more than 25% of the total
vacant posts. The Committee is to forward the list prepared to the Appointing Authority.
Part-VI deals with the procedure for recruitment by promotion, with which we are not concerned. PartVII deals with appointment, probation, confirmation and seniority. Rule 20, in particular, is relevant as it provides as follows: “20. (1) The appointing authority shall appoint the
candidates in the order they stand in the list prepared under rule 15.
(2) If more than one appointment orders are issued against one selection, a combined order bearing the names of the persons selected in order of seniority as determined in the select list as it stood in the cadre from which they are promoted shall also be issued.
(3) All appointments are made under these rules shall be in written.”
44. Rule 21 provides for probation and Rule 22 deals with confirmation, while Rule 23 provides for seniority. Rule 23 reads as follows:
“23. (1) Except as hereinafter provided, the seniority of persons in any category of post shall be determined according to the Uttarakhand Government Servants Seniority Rules, 2002. The seniority of persons in any category of post shall be determined from, the date of the orders of substantive
appointment and if two or more persons are appointed together, by such order in which their names are arranged in the appointment order:
Provided that the appointment order specifies a particular back date with effect from which a person substantively appointed, that date, will be deemed to be the date of order of substantive appointment and, in other case, it will mean the date of issue of the order:
Provided further that if after a selection, more than one appointment orders are issued, the seniority shall be such as, is mentioned in the combined appointment order issued under
sub-rule (2) of rule 20.
(2) The Seniority inter se of persons appointed directly on the result of any selection shall be the same as determined by the Selection Committee: Provided that a candidate recruited directly may lose his seniority if he fails to join the post offered, without valid reasons and his appointment will also be cancelled.
(3) The Seniority inter se of persons appointed by promotion shall be the same as it was in the cadre from which they were promoted.
(4) The name of the persons, appointed through direct recruitment on the posts mentioned clause (b) of under rule 9 shall be placed just below the last name of the combined seniority list of the Head Teacher Government Primary School and Assistant Teacher Government Upper Primary
School / Government Model School, who are promoted just before the substantive appointment of the persons appointed through direct recruitment.”
45. Rule 27 provides as follows:
27. In regard to the matters not specifically covered by these rules of special orders, persons appointed to the Service shall be governed by the rules, regulations and orders, applicable
generally to Government servants serving in connection with the affair of the State.”
46. It is after this that another development took place and that is noticing the shortage of trained teachers and the availability of B.Ed. degree holders, the State of Uttarakhand made a request to NCTE to invoke its power under Section 23 of the 2009 Act. The NCTE found favour with the request and issued proceeding dated 17.10.2012. As per the same, the NCTE extended till 31.03.2014
right of a B.Ed. degree holder to be appointed as an Assistant Teacher in Primary School.
The relevant portion of the said Notification issued by the Government of India reads as follows:
“NOW THEREFORE, in exercise of the powers conferred by sub-section (2) of section 23 of the said Act, the Central Government hereby relaxes in respect of the State of Uttarakhand, the minimum qualifications laid down by the Council under sub-section (1) of section 23 of the said Act in
so far as they relate to classes I to V, and allows persons referred to in sub-clause (a) of clause (i) of paragraph 3 of the said notification as amended from time to time, eligible for
appointment as teacher for classes I to V beyond the 1st January, 2012, subject to fulfillment of the conditions specified under the said sub-clause.
2. The relaxation granted under this notification shall be valid for a period upto the 31st March, 2014, subject to fulfillment of following conditions, namely:(i) the State Government shall conduct the Teacher Eligibility Test as specified in the said notification as amended from time to time, in accordance with the Guidelines for conducting Teacher Eligibility Test, under the said Act, issued by the Council vide its letter dated the 11th February, 2011 and those persons who pass the Teacher Eligibility Test be considered for appointment as teacher in classes I to VIII;
(ii) the State Government and other school managements shall amend the recruitment rules relating to appointment of teachers so as to provide for the minimum qualifications required for appointment of teachers, laid down under the said notification as amended from time to time;
(iii) the State Government shall in the matter of appointment of teachers give priority to those eligible candidates who possess the minimum qualifications specified in the said notification as
amended from time to time and thereafter consider other candidates eligible with the qualifications referred to in subclause (a) of clause (i) of paragraph 3 thereof; (iv) advertisement for appointment of teachers shall be given wide publicity, including outside the State;
(v) the State Government and other school managements shall ensure that teachers employed or engaged by them who possess the minimum qualifications referred to in sub-clause
(a) of clause (i) of paragraph 3 of the said notification as amended from time to time, under go, after appointment, a National Council for Teacher Education (NCTE) recognized six month Special Programme in Elementary Education;
(vi) the relaxation specified in this notification shall be onetime and no further relaxation under sub-section (2) of Section 23 of the said Act shall be granted to the State of Uttarakhand;
(vii) the State Government shall take steps to increase the institutional capacity for preparing persons with specified qualifications so as to ensure that only persons possessing qualifications laid down under the said notification are appointed as teachers for classes I to V after the 31st March,
3. The persons referred to in sub-clause (a) of clause (i) of paragraph 3 of the said notification as amended from time to time, shall also be eligible for appearing in the Teacher Eligibility Test conducted by the State Government in respect of teacher appointments made in the State up to 31st March, 2014, in accordance with sub-paragraph (iii) of paragraph 5 of the guidelines for conducting Teacher Eligibility Test under the said Act issued by the Council vide its letter dated the 11th
47. Apparently, it was in compliance of the same that an amendment was carried out making the B.Ed. degree holders qualified as will be seen hereinafter.
48. The Rules came to be amended in the year 2013. By virtue of the amendment, as far as the Assistant Teacher in Primary School covered by Rule 9 (a) is concerned, the provisions as substituted
after the amendment, reads as follows:
Sl. Post Educational Qualification Assistant Master / Assistant Mistress Government
Primary School / Attached Government Primary School (Class I-V)
(i) Graduate from the University established by law in India: Provided that for
appointment of Assistant Teacher (Urdu) graduation with Urdu as a main subject shall be compulsory.
(ii) Two years Diploma in Elementary Education (D.El.Ed.) known as B.T.C. in Uttarakhand
from the concerned District Institute of Education and Training / District Resource Centre.
SHIKSHA MITRA (para teacher) working in Government Primary School and has passed two years
D.El.Ed. Course from Indira Gandhi National Open University (IGNOU).
No. (a) (iii) Must have qualified the Teacher Eligibility Test (TET-I) for Class I-V conducted by the
State Government / Central Govt. in accordance with the guidelines framed by the NCTE for the
Under the Note, which relates to post in 9(b), we notice that B.Ed. is introduced. Under the same amendment, Part-10 under the heading ‘Trainee Teacher’ was also introduced.
The English translation of the Rules as was made available to us reads as follows:“Part-10 Trainee Teacher 22 31(2) After Rule 30 of part 9 to make existing provisions as it is mentioned in the Uttarakhand Government Elementary Education (Teacher) Service Rules, 2012, the provisions of
part 10 shall be substituted as follows:31 (1) A candidate for direct recruitment must have
attained the age of 21 years and must not have attained the age of more than 40 years on the first day of July of the calendar year in which the vacancies are advertised:
Provided that for those trainees teachers selected according the Government Order No. 1283/XXIV(1)/201128/2010 dated 14th December 2011, the maximum age may be
relaxed up to three years for all categories.
Sl. No. Post Educational qualification (a) Assistant Master / Assistant Mistress Government
Primary School / Attached Government Primary School (Class I-V) 1. B.Ed.
qualified trainee teacher will be eligible upto 31.03.2014, according the para 3rd of notification no. 215 dated 25-08-2010 and amended notification no. 158 dated 02-082011 of NCTE and also as the notification no. 2515 (E) dated 17-102012 of Govt. of India.
2. Qualified-Teacher Eligibility Test (TET-1) for Class I-V conducted by the
State Government / Central Govt. in accordance with the guidelines framed by the NCTE for
31(3) The trainee teacher selected in accordance with notification dated 25-08-2010 and amended notification dated 02-08-2011 of NCTE and GO no. 1283/XXIV(1) /2011-28/2010 dated 14 December 2011 will be eligible for appointment as Asstt. Master / Asstt. Mistress in Government Primary School / Attached Government Primary School and their seniority and reservation shall be
same as in their selection list as a trainee teacher.
32. The trainee teacher must pass a six month special programme in elementary education recognized by NCTE as mentioned in the notification dated 25-08-2010 and amended notification dated 02-08-2011 of NCTE.
Periodical increment shall not be sectioned until and unless 23 the trainee teacher not pass successfully six month special training.”
50. It is on the basis of the same apparently that the Government issued the order dated 31.01.2014. English translation of the order, insofar as it is relevant is referred to hereunder:“No. 149/XXIV(1) / 2014-28/2010 Sender, S. Raju, Principal Secretary, Uttarakhand Government.
To, The Director, Primary Education, Uttarakhand, Nanukhera, Dehradun.
Education Department 1 Basic Dehradun: Dated 31 st January, 2014.
Subject: For selection of B.Ed. Eligible Candidates, having qualified the Teachers’ Eligibility Test (TET-1), for being appointed in the Government Primary Schools on the post of Assistant Teacher.
Sir, Kindly take reference of your letter No. Pro.Shi.Seva 2/30200/B.Ed. Appnt./2013-14 dated 21.01.2014.
2.It is to be brought to the notice that under the Right to Education Act, 2009, vide the notification dated 23rd August, 2010 as well as the modified notification dated 29th July, 2011,
issued by the N.C.T.E. which is an Institute of the Government of India, under Section 3, the candidates have obtained the requisite educational and training eligibility and the Teachers’
Eligibility Test (TET-I), as per the provisions mentioned in the Notification no. 2512-E dated 17.10.2012 of the Government of India, there is a provision for appointment of Assistant
Teachers in the Government Primary Schools with the condition that after the appointment, it would be necessary for such candidates to qualify a special training course of six months from the NCTE approved institutes.
3.For the appointment of B.E.D. and T.E.T. approved candidates, vide the government order issued earlier no. 1283/XXIV (1) 2011-28/2010 dated 14.12.2011, the prescribed district-wise selection process was challenged before the Hon’ble High Court, Nainital and the Hon’ble High
Court in the judgment dated 25.11.2013 passed in Special Appeal No. 380 /2010, did not find the district-wise selection process, to be justified. As such, the directions issued from time to time as also in view of the modified provisions under the Uttarakhand Government Primary Education Service
Teachers Services Regulation, 2012, before making appointments of these candidates, it would be required to
select them on the basis of a joint seniority list at the State
level. After selection, on the basis of submission of their
option as also on the basis of their seniority, the districts shall
be allotted to the candidates so that as per the provisions of the
Regulations, the Appointing Authority can provide the
appointment on the basis of cadre.
Hence, the department-wise resolutions, the sanction
for selection process of the candidates having been passed the
Teachers Eligibility Test (TET-1) /B.Ed. qualified candidates,
is being granted on the post of Assistant Teacher in the
Government Primary School to be performed under the
Education & Training Eligibility:
As per the prescribed standards of National Teachers
Education Council, the educational and training eligibility are
Bachelors’ Degree from the established College /
University established under the law in India / University
which is recognized by the University Grants Commission and
who has obtained the eligibility of B.Ed./B.Ed. Special
Education from an Institute being recognized by the National
Teachers’ Education Council.
For the Teachers of Class 1 to 5, who have qualified the
Teachers Entrance Test from Uttarakhand Government or the
Age of candidates:As on 1st July, 2013, the date of a candidate should be
minimum 21 years and maximum 40 years but in case of
scheduled caste and scheduled tribe and that of other backward
class candidates, there would be age relaxation of five years in
maximum age limit, but in any condition, a candidate of more
than 50 years of age on the cut off date, would not be entitled
(8) Selection Process:The entire selection process shall be performed under the
guidance / supervision of the Additional Director, State
Educational Research & Training Council, Uttarakhand,
Dehradun. The selection training shall be done on the basis of
seniority and merit of marks. The calculation of marks shall be
done as under:A.
The names of candidates shall be kept in the order of
total marks received in the Educational Training Eligibility and
Teachers Eligibility Test and those shall be kept in descending
order on the basis of seniority of training year. But if the total
marks and training year of two candidates is the same, then the
seniority in age shall be given preference for the selection of a
candidate. The calculation of marks shall be done as under:Serial
Exam/ Name of Degree
Percentage of Marks x
Training B.Ed./D.Ed. Special
Education /B.Ed. Special
Education A. Theoretical
Teachers’ Eligibility Test: IV)
Percentage of Marks x
Percentage of Marks x
Percentage of Marks x
Percentage of Marks x
Percentage of Marks x
Joint Seniority List shall be prepared at the State level and the
districts shall be appointed to the candidates on the basis of
Against the total number of vacancies available in a
district, the selection of 50 percent shall be from science side
and the selection of 50 percent science category candidates
shall be done under the prescribed rules.
Whatever the information mentioned in the application
forms received from the candidates, on its basis only, the
Seniority List shall be prepared. Along with the application
form, the Teachers’ Education Test being organized by the
Uttarakhand Government or the passed mark-sheet of C.T.E.
for Class 1 to 5, the passed out mark-sheets of High School,
Intermediate, Graduate examination and B.Ed./Special
Education / D.Ed. Special Education issued from a recognized
Board / College/ University and the caste certificate issued by
the competent authority and the copy of special reservation
certificate shall be submitted self-attested. The waiting list in
excess for more than 25 percent shall be prepared separately.
The entire prescribed eligibility should be complete by
the concerned candidates by the last date of applying in the
The verification of the documents of the selected
candidates shall be got done by the Appointing Authority from
the Institutes issuing such certificate. In case of finding any
difference in verification, the selection / enquiry / appointment
/ training, at any stage, the candidature of the candidate shall
be cancelled and the legal action shall be initiated against the
candidate by lodging a first information report against him.
Six months’ Special Training:After selection, the candidates shall be sent for six months’
training in the District Education & Training Institute of the
concerned district wherein three months’ practical training
shall be required to be received by the applicant in the college
of his posting.
(10) Committee for State Level Selection:1.
Additional Director, State Educational Investigation &
Training Council, Uttarakhand Head.
Principal, District Education & Training Institute.
Member nominated by the Director, Academy of
Investigation and Training.
Joint Director, State Educational Institute & Training
Council, Uttarakhand. Member.
One Officer Member of Scheduled Caste/ Scheduled
tribe being nominated by the Director of Academy, Research
Deputy Director, State Educational Investigation &
Training Council, Uttarakhand- Member Secretary.
(11) Original Appointment:After the State level selection, the candidates shall be given
selection by the Appointing Authority of the allotted district
under the provisions of the Uttarakhand Government Primary
Education Teachers’ Service Act, 2012, being amended from
time to time.
(12) The district-wise expected number of vacancies (which
can be increased / decreased) are as under:Serial
Name of District
Udham Singh Nagar
It is on the basis of the same that the impugned advertisement
has been issued dated 01.02.2014. It is appropriate to notice that it
is clear on the basis of the provisions as contained in the
Government Order dated 31.01.2014 that the provisions are modeled
in particular on Clause (8) of order dated 14.11.2011. Yet we must
refer to one last development, which took place and that is the
enactment of the amendment, which is brought about.
translation of the same was made available to us. The relevant
portion of the amendment is reproduced as under:
“1. Amendment of Part.10 rule 1(Age Limit)—In place of
existing provision in rule 31 of the Uttarakhand
Government Education (Teacher) Service Rules, 2012, the
following provision shall be substitutedFor direct recruitment the age of a candidate should
be anywhere from 21 to 42 years as on 1st July of the
calendar year in which posts are advertised.
2. Amendment of Part 10 rule 3- In place of the
existing provision in Part 10 rule 3 in column 1 below rule
31 of the Uttarakhand Government Elementary Education
(Teacher) (Amendment) Service Rules, 2013, the following
provision in column 2 shall be substitutedUnder the provisions of the notification dated 25-082010 and the amended notification dated 02-08-2011 of the
National Council for Teacher Education, the candidates
possessing B.Edand T.E.T (I-V) shall be eligible for
appointment on the post of Assistant Teacher, government
primary schools uptil 31st March, 2014.
Provided that in the event candidates with training
qualification as per rule 9(a) (2) of the Uttarakhand
Government Elementary Education (Teacher) Service
Rules, 2012 are not available, candidates having B.Ed. from
a university established by Law in India and also NCTE
recognized T.E.T. (1-V) shall also be eligible for
appointment to the post of Assistant Teacher (Urdu),
government primary school upto 31st March 2014. Clauses
2 and 3 under rule 15 (1) shall continue to be applicable to
After the State level selection appointment will be
given to these candidates by the Deputy Education Officer
of the concerned Development Block.”
The amendment came into force on 05.03.2014, on which day,
it came to be published as it is specifically provided that it shall
come into force with immediate effect.
We have already set out the factual legal background leading
up to issuance of the advertisement. The impugned advertisement
was issued exclusively to select the primary school teachers from
among those, who had B.Ed. Before the promulgation of the Rules,
as we have already noticed, by an executive order dated 14.12.2011,
apparently based on the Notification dated 23.08.2010 published by
the National Council for Teacher Education, B.Ed. Degree Holders
were also enabled to be appointed till 31.01.2012. The selection
was challenged. The challenge was repelled by the learned Single
Judge of this Court, but at that time, there were no statutory Rules as
such. By order dated 17.10.2012, the Government of India again
extended the time till 31.03.2014 for appointing the persons with
B.Ed. qualifications. A perusal of the same would show that it was
conditioned upon the amendment of the Rules. In 2013, the Rules
came to be amended. Under Rule 31(2), B.Ed. Degree Holders were
rendered qualified for appointment till 31.03.2014.
provides that trainee teachers, who were selected pursuant to order
dated 14.11.2011 shall be eligible to be appointed under the Rules.
According to the learned counsel for the petitioners, thus, the
position is that the petitioners being B.Ed. Degree Holders became
qualified to be appointed on the basis of the decision of NCTE.
Rule 31(3) is exclusively meant for those teachers, who were
selected pursuant to the executive orders mentioned therein and it is
not meant to regulate or control the selection in question.
On the other hand, even finding merit in the said argument, we
cannot overlook the following features present in this case. Persons
passing B.Ed. could be appointed till 31.03.2014 going by the
provisions of Rule 31(2). Rule 31(2) if it is understood as referring
to the posts and the qualification necessary for the appointment to
the post could be said to not as such comprehend also the method of
selection to the post. This brings us to the question as to whether
the method of selection contemplated under the Rules or the method,
which is provided in the order dated 31.01.2014, which is the basis
of the advertisement, should prevail. It is in this context that the
omission on the part of the petitioners to challenge the Government
Order dated 31.01.2014 assumes prominence.
It is settled law that even a decision or an order, which may be
void as being ultra vires must be questioned and its voidness either
got declared or suitable other reliefs sought in this regard. We may
refer to the decision of the Hon’ble Supreme Court in the case of
State of Punjab and others Vs. Gurdev Singh reported in (1991) 4
SCC Page 1, wherein the Apex Court has held as follows:
“8. But nonetheless the impugned dismissal order has at least
a de facto operation unless and until it is declared to be void
or nullity by a competent body or court. In Smith v. East
Elloe Rural District Council Lord Radcliffe observed: (All ER
“An order, even if not made in good faith, is still an act
capable of legal consequences. It bears no brand of
invalidity on its forehead.
Unless the necessary
proceedings are taken at law to establish the cause of
invalidity and to get it quashed or otherwise upset, it will
remain as effective for its ostensible purpose as the most
impeccable of orders.”
9. Apropos to this principle, Prof. Wade states: “the principle
must be equally true even where the ‘brand’ of invalidity” is
plainly visible; for there also the order can effectively be
resisted in law only by obtaining the decision of the court.
Prof. Wade sums up these principles:
“The truth of the matter is that the court will invalidate
an order only if the right remedy is sought by the right
person in the right proceedings and circumstances. The
order may be hypothetically a nullity, but the court may
refuse to quash it because of the plaintiff’s lack of
standing, because he does not deserve a discretionary
remedy, because he has waived his rights, or for some
other legal reason. In any such case the ‘void’ order
remains effective and is, in reality, valid. It follows that an
order may be void for one purpose and valid for another;
and that it may be void against one person but valid
This principle has been followed also in subsequent decisions
and it is sufficient to notice Krishnadevi Malchand Kamathia and
others Vs. Bombay Environmental Action Group and others
reported in (2011) 3 SCC 363, wherein the Court, inter alia, held as
follows:“Even if an order is void, it requires to be so declared by
a competent forum and it is not permissible for any person to
ignore the same merely because in his opinion the order is void.
Whether an order is valid or void, cannot be determined by the
parties. For setting aside such an order, even if void, the party
has to approach the appropriate forum.
Once an order is declared non est by the court only then
the judgment of nullity would operate erga omnes i.e. for and
against everyone concerned. Such a declaration is permissible
if the court comes to the conclusion that the author of the order
lacks inherent jurisdiction/competence and therefore, it comes
to the conclusion that the order suffers from patent and latent
Even if the order/notification is void/voidable, the party
aggrieved by the same cannot decide that the said
order/notification is not binding upon it. It has to approach the
court for seeking such declaration. The order may be
hypothetically a nullity and even if its invalidity is challenged
before the court in a given circumstance, the court may refuse
to quash the same on various grounds including the standing of
the petitioner or on the ground of delay or on the doctrine of
waiver or any other legal reason. The order may be void for
one purpose or for one person, it may not be so for another
purpose or another person.”
No doubt, the learned counsel for the petitioner Mr. K.P.
Upadhyay drew our attention to the judgment of the Hon’ble Apex
Court reported in Bharatidasan University Vs. All India Council
for Technical Education and others reported in (2001) 8 SCC
676. Therein, the Hon’ble Apex Court, no doubt, was considering
the question whether the Regulation made purporting to be under
Section 10 of the AICTE Act could be said to have been made
within the scope of its powers.
The Court, inter alia, held as
“14. The fact that the Regulations may have the force of law
or when made have to be laid down before the legislature
concerned does not confer any more sanctity or immunity as
though they are statutory provisions themselves.
Consequently, when the power to make regulations is
confined to certain limits and made to flow in a well-defined
canal within stipulated banks, those actually made or shown
and found to be not made within its confines but outside them,
the courts are bound to ignore them when the question of their
enforcement arises and the mere fact that there was no
specific relief sought for to strike down or declare them ultra
vires, particularly when the party is sufferance is a respondent
to the lis or proceedings cannot confer any further sanctity or
authority and validity which it is shown and found to
obviously and patently lack. It would, therefore, be a myth to
state that Regulations made under Section 23 of the Act have
“constitutional” and legal status, even unmindful of the fact
that any one or more of them are found to be not consistent
with specific provisions of the Act itself.
Regulations in question, which AICTE could not have made
so as to bind universities / UGC within the confines of the
powers conferred upon it, cannot be enforced against or bind
a university in the matter of any necessity to seek prior
approval to commence a new department or course and
programme in technical education in any university or any of
its departments and constituent institutions.”
There is also a case for the learned counsel for the petitioner
that this is a case, where the petitioner has challenged the
advertisement and the provisions are the same, wherein the
provisions in the order are incorporated. Before we proceed to
finally pronounce on this issue, it also becomes necessary to go into
the question, whether there is ultra vires or at least whether we could
unambiguously or without the shadow of doubt hold that the order is
clearly opposed to the Rules and the Government is prohibited from
making selection based on the order. In this connection, we must,
first of all, notice that under the Rules, the Selection Committee
consists of the Principal, District Education & Training Institute /
District Resource Centre as Chairman, District Education Officer
(Elementary Education) as Member; a Class II Officer nominated by
the Chief Education Officer as Member; the Deputy Education
Officer (Elementary Education) of the concerned Block as the
Member Secretary; and an officer from any department of the
District nominated by the District Magistrate; whereas in this case,
the committee for State Level Selection under Clause (11) of order
dated 31.01.2014 is to consist of (1) Additional Director, State
Educational Investigation & Training Council, Uttarakhand Head,
(2) Principal, District Education & Training Institute as Member
nominated by the Director, Academy of Investigation and Training,
(3) Joint Director, State Educational Institute & Training Council,
Uttarakhand as Member, (4) one officer who is the Member of
Scheduled Caste / Scheduled Tribe being nominated by the Director
of Academy Research & Training and (5) the Deputy Director, State
Educational Investigation & Training Council, Uttarakhand is to be
the Member Secretary.
Therefore, the Selection Committee
constituted under the Rules and the order, and the advertisement is
completely different. This is an indication that the selection is not
being made as such under the Rules. The petitioners have not raised
any complaint about that nor has the learned Single Judge
pronounced on the same. This means that the petitioners accept
selection is to be done by a Committee other than as contemplated
under the Rules.
Further more, the more important aspect is, if the selection is
done strictly under Rule 15(3), the name of candidate in the list
prepared is to be arranged in the descending order of the total of
60% of the percentage of marks obtained in B.T.C. / D.EL.ED and
40% of the percentage of marks obtained in T.E.T. We have noticed
already that this is a selection being done exclusively for persons,
who have B.Ed. qualifications. What the Rule 15(3) would indicate,
inter alia, is that the list is to be prepared on the basis of 60% marks
obtained in B.T.C/ D.El.Ed. That qualification has absolutely no
relevance for this selection. Rule 15(3) in fact becomes unworkable
as such if it is to be applied for B.Ed. Degree Holders. In other
words, it is not possible as Rule 15(3) stands to provide for a list to
be prepared in the descending order of the total of 60% of marks
obtained in B.T.C. / D.El.Ed when selection is being made from the
B.Ed. Degree Holders. On the face of it, therefore, the said Rule
cannot be operated in this selection.
No doubt, the learned counsel for the petitioners when
confronted with this position initially made an attempt to persuade
us to substitute the word “B.Ed.” in place of “B.T.C./D.El.Ed”. We
found this submission as ill-founded as that would amount to the
Court encroaching into the province of the law-giver. Faced with
this situation, he would then submit that 40% marks obtained for
T.E.T. could be the basis. We would think, that would involve
truncation of the Rule, which would again be ultra vires as the Rules
would stand not complied with. If the Rule is to be applied, the
Rule must be applied as it stands. When the Statute says that the
thing must be done in a particular manner, then if it is applied, it
must be done in that manner. We have undertaken this exercise of
examining the logical culmination of accepting the petitioners’
argument, which apparently found favour with the learned Single
Judge that the impugned advertisement is ultra vires the Rules,
including Rule 15. As the Rule stands, there is no scope of applying
the Rules. It is in this context, therefore, we must appreciate the
contention of the appellants that there is no challenge to the
Government Order, which provided for a different method of
selection, which we have already noticed. We may also notice that
it was this very method of selection, which gained acceptance at the
hands of the learned Single Judge when the selection process was set
in motion by advertisement dated 15.12.2011. Apparently the State
wished to apply the very same yardstick to the selection of B.Ed.
Degree Holders, be they selected earlier pursuant to advertisement
issued in 2011 or subsequently in the year 2014.
In this context, we must notice the argument of the learned
counsel for the petitioner that the case law submitted by the learned
Advocate General to the effect that the person, who participates in a
selection, cannot resile from the terms of the selection will not
It is noted that this is not a case, where there is any
examination or interview as such under the selection process. The
Advertisement was issued on 01.02.2014. The petitioner applied
pursuant to the same within the specified time. Even without having
perused the order dated 31.01.2014, under which the Advertisement
was issued, quite obviously the terms of the advertisement spelt out
a completely different method of selection besides a different
selection body from the Rules. It is with eyes wide open that the
petitioner applied. On the one hand, while it may be true that it is a
case, where the petitioner did not participate in an examination or
interview and realizing failure therein, he turns around and
challenges the selection, but it is, at once, pertinent to note that there
is no examination or interview involved in this process under the
advertisement. What is involved is application of the criteria to the
applicants and preparation of the list as provided therein and that is
where the learned Advocate General would argue that the fate of the
petitioner would be known on the basis of the criteria being applied
to him and it is known to him and the petitioner must be treated as
having applied and, thereafter, it is not open to resile from that
position and seek to challenge the provisions. We notice that the
case law, which is submitted before us, invariably involved a
selection process containing examination and interview; petitions
were filed after petitioners having sat on the fence and gambled for a
favourable decision and things being otherwise, seeking to overturn
the selection process. But, at the same time, we cannot disregard the
nature of the selection process involved in this case. It does not
involve any examination or interview. Therefore, in this case also,
the petitioner by his conduct disentitled himself from claiming
relief. But we would not like to rest our decision essentially on this
as we would think we are on surer foundations in the nature of
discussion we have made in the preceding paragraphs, about the
nebulous foundations for the plea of ultra vires itself and in which
circumstances, absence of a challenge to the foundational order,
namely, the order dated 31.01.2014, which is specifically referred to
in the advertisement and the ground taken in the counter affidavit
(though the order is allegedly not produced), would be sufficient in
our view to disentitle the petitioner from grant of any relief.
There is no doubt, the plea of the petitioner that even applying
the provisions relating to the marks as contained in the
advertisement and executive order and, also, disregarding the Rule
15(3) as amended, the Court may sustain the striking down of
preparation of the list based on descending order of the year in
which B.Ed. degree was obtained. This is on the plea of Article 14
which found favour with the learned Single Judge. Though, we
scanned the pleadings, we found no case at all built by the petitioner
based on violation of Article 14 in the writ petition. There is no
serious dispute regarding absence of pleadings, but the case set up is
that it is a question of law and application of principles of Article 14
to the given admitted fact situation and no objection could be taken
due to lack of pleadings. We are afraid this approach is difficult to
sustain. Article 14 frowns upon unreasonable classification and also
permits reasonable classification. Likewise Article 14 strikes at
arbitrariness in State action. But we must remember that in regard
to the very same matter, another learned Single Judge has already in
a batch of writ petitions sustained the principle of B.Ed. degree
holders being arranged in the order of seniority in obtaining the
No doubt, we notice that the Division Bench in
Special Appeal No. 360 of 2012 held that even though the petitioner
therein had applied for the post of Primary School Teacher as he had
prayed that his candidature be considered for selection to the post
from other district besides his home district, the decision in (2008) 4
SCC Page 171 would not apply. It is also found that the petitioner
had raised the matter of extreme importance as there is violation of
the fundamental rights alleged. We may notice in this case that there
is no case of fundamental rights’ violation set up by the petitioner
and while we are not oblivious of the principle that the fundamental
rights cannot be waived as held by the Hon’ble Apex Court in
Basheshar Nath v. Commr. of Income-tax, Delhi reported in AIR
1959 SC 149, however, in the absence of any case as such for the
petitioner based on fundamental rights, such a principle would not
apply. The Division Bench did not disturb the findings of the
learned Single Judge repelling challenge to the arranging of persons
with B.Ed. on the basis of the year of acquisition of B.Ed. Violation
of Article 14 in our view at least in the facts of this case should not
have been found by the learned Single Judge, when the petitioner
did not even have such a case as such. Is violation of Article 14
admitted by the other side? The answer is obviously in the negative.
There is a logic also, which is offered to sustain the year-wise
preference given to the B.Ed. degree holders, which found favour
with this Court once. It is not a matter, which was entirely free of
ambiguity or in the region of being indisputable.
circumstances, we feel that the petitioner not having challenged the
order dated 31.03.2014 which provides for a different method and
which was the basis of the advertisement and which also contained
the very same provision cannot at any rate be permitted to be
challenged the matter on the basis of violation of Article 14. We
have already noticed that the Rule 15(3) is inapplicable.
selection committee is different.
Regarding the amendment to the Rules brought about in
March, 2014 in the very first place, the proviso appears to refer to
selection of ‘Urdu teachers’ and, according to the respondents, the
selection does not relate to ‘Urdu teachers’ as such. The reference
to sub-rules (2) and (3) of Rule 15 being applicable to the said
selection appears in the proviso. No doubt, the learned counsel for
the petitioner would point out that the main provision itself provides
for appointment to primary teachers from among the B.Ed. degree
holders, and therefore, the Rules will apply. He would also, no
doubt, point out that the permission, as granted by NCTE, would
expire on 31.03.2014 and he posed the question, if it is not meant to
be applied to this selection, what is its relevance.
There is a
response by the appellants by pointing out that there can be future
We have already referred to the fact that the
petitioner has not challenged the Government Order.
Government Order appears to comprehensively provide for selection
by a different agency and a different method. That apart, we cannot
overlook the salutary principle that after the selection process set in
motion, a change cannot be brought about in the method of
selection. The amendment does not operate with retrospective effect
from the date of issuance of the impugned advertisement. On the
other hand, the amendment would come into force only in March,
2014, which means it would have prospective effect.
The upshot of the above discussion is that we cannot sustain
the judgment of the learned Single Judge, except insofar as the
learned Single Judge frowns upon reservations to sportspersons and
Rajya Andolankaris. We sustain the judgment to the extent that
reservation in favour of sportspersons and Rajya Andolankaris has
been frowned upon.
Except as aforesaid, the judgment of the
learned Single Judge will stand set aside. In the circumstances of the
case, the Appeals stand disposed of as above. There will be no order
as to costs.
Let a copy of this judgment be issued today itself.
(V.K. Bist, J.)
(K.M. Joseph, C.J.)