SA & LP Telugu Court Case Judgement on PG in Telugu with BEd for Promotion

HON’BLE SRI JUSTICE D.V.S.S. SOMAYAJULU
WRIT PETITION Nos.10474 and 10034 of 2021 % 12th November, 2021
W.P.No.10474 of 2021

#M.R.L. Sankara Rao and 14 others
… Petitioners..

AND
The State of Andhra Pradesh and 28
others.
… Respondents.

Counsel for the Petitioners : Sri Santhapur Satyanarayana Rao
Counsel for the 1st & 2nd respondents : Sri P.Sudhakar Reddy Addl. Advocate General
Counsel for the 3rd to 20th respondents : Sri A.Rajendra Babu ^ Counsel for the 21st to 29th respondents: Sri Bobbili Srinivas
Gist:
Head Note:
Cases referred:
1. (2018) 12 SCC 595
2. AIR 1967 SC 1910
3. (2001) 3 SCC 110
4. (2008) 4 SCC 171
5. (2017) 1 SCC 322
6. (2013) 4 SCC 540
7. (2019) 2 SCC 404

SA & LP Telugu Court Case Judgement on PG in Telugu with BEd for Promotion 

HON’BLE SRI JUSTICE D.V.S.S.SOMAYAJULU WRIT PETITION No.10474 and 10034 of 2021 COMMON ORDER:
In both these Writ Petitions the challenge is to G.O.Ms.No.70 School Education (Exams) Department, dated 05.11.2018. The prayer in these Writ Petitions is to set aside the G.O.Ms.No.70, dated 05.11.2018, which is issued 10 days after the initial G.O.Ms.No.67 School Education (Exams) Department, dated 26.10.2018.

This Court for the sake of convenience, at this stage itself is reproducing the first page of the G.O.Ms.No.70, dated 05.11.2018, hereunder to highlight the area of challenge:


“GOVERNMENT OFANDHRA PRADESH
ABSTRACT
The Andhra Pradesh Teacher Recruitment Test(TRT)

for the posts of School Assistants(SAs), Language Pandits (LPS), Physical Education Teachers(PETS), Music Teachers, Craft Teachers and Art& Drawing Teachers and Teacher Eligibility Test cum Teacher Recruitment Test (TETcumTRT) for the posts of Secondary Grade Teachers(SGTS) Scheme of Selection Rules, 2018- Amendment- Orders - Issued.

SCHOOL EDUCATION (EXAMS) DEPARTMENT
G.O.Ms.No. 70 Dated: 05-11-2018 
Read the following:
1. G. O. Ms. No. 67, School Education (Exams) Department, dt:26.10.2018.
2. From the Commissioner of School Education,Andhra Pradesh Lr.Rc.No.ESE02-20021/6/2018-
RECTMT-CSE, Dt: 27.10.2018.


ORDER:-

In the Government Order 1" read above, The Andhra
Pradesh Teacher Recruitment Test(TRT) for the posts of School Assistants(SAs), Language Pandits (LPs), Physical Education Teachers(PETS), Music Teachers, Craft Teachers and Art& Drawing Teachers and Teacher Eligibility Test cum Teacher Recruitment Test (TET-cum-TRT) for the posts of Secondary Grade Teachers (SGTs)-Scheme of Selection Rules, 2018 were issued.

2. In the circumstances stated by the Commissioner of School Education, AP, Ibrahimpatnam in the letter 2nd read above, Government after careful examination of the matter, Government hereby issue the following amendments to the aforesaid Rules issued in G. O. Ms. No. 67, School Education (Exams) Department, dt: 26.10.2018.

AMENDMENTS

1. Para 4(2)(i)(f) Para shall be substituted as follows.

Existing Para
Must possess a Bachelor's Degree with Telugu as the main subject or one of the three equal optional subjects or Bachelor's Degree in Oriental Language in Telugu (B.O.L) or its equivalent and B.Ed with Telugu as methodology Subject or Telugu Pandit Training or its equivalent

Substituted with
Must possess a Bachelor's Degree with Telugu as the main subject or one of the three equal optional subjects or Bachelor's Degree in Oriental Language in Telugu (B.O.L) or its equivalent or a Post Graduate Degree in Telugu and B.Ed with Telugu as methodology Subject or Telugu Pandit Training or its equivalent

(Highlighted portion is the area of dispute)

This Court has heard Sri S.Satyanarayana Rao, learned counsel for the petitioner in W.P.No.10474 of 2021 and Sri P.V.Krishnaiah in W.P.No.10034 of 2021, learned Additional Advocate General Sri P.Sudhakar Reddy for the respondent State and Sri A. Rajendra Babu, learned counsel for the implead petitioners/respondents 3 to 20 in W.P.No.10474 of 2021 and for implead petitioners/respondents 3 to 18 in W.P.No.10034 of 2021; Sri Bobbili Srinivas, learned counsel for the implead petitioners / respondents 21 to 29 in W.P.No.10474 of 2021 and for the implead petitioners/respondents 19 to 24 in W.P.No.10034 of 2021.
Both the learned counsel for petitioners very vehemently argued with great passion that the initial G.O.Ms.No.67, dated 26.10.2018 is issued under the powers delegated under Article 309 of the Constitution of India and that the same cannot be amended by way of executive instructions. It is also argued that if the State wishes to prescribe additional qualifications it had to amend the rules that were prevailing as on the date of the notification. It is argued that these are statutory rules which can only be changed by way of amendment only and new qualifications cannot be introduced by way of Executive instructions. This is the substratum of the challenge. In addition, it is also argued that the rules of the game cannot be changed after the game has begun. Both the learned counsel submits that new qualifications cannot be prescribed or introduced for selection of candidates after the notification is issued. Last but not the least it is also argued that G.O.Ms.No.70 was the subject matter of the challenge in W.P.No.9118; 9164; 11961; 17367 and 17864 of 2020, which was ultimately allowed on 25.03.2021. The earlier order passed in O.A.No.2516 of 2018 was also brought to the notice of this Court. It is, therefore, submitted that in view of this legal position of law the petitioners are entitled to the relief. Therefore, the prayer is made in both these writ petitions for declaring the action of the respondents in issuing G.O.Ms.No.70, dated 05.11.2018 as arbitrary, illegal and ultra vires and to set aside the same. A consequential direction prayed for is to direct the respondents to complete the selection process for appointment to the post of School Assistant (Telugu) and Language Pandit (Telugu).

Sri P.V. Krishnaiah also argues that by prescribing higher qualifications greater higher competition is introduced after the Notification has been issued.

In reply to this, the essential argument advanced by the learned Additional Advocate General is that the State has ample power to issue a clarificatory or supplementary G.O. He points out that the G.O. was issued on 05.11.2018 only to fill up an obvious gap in the regulations. He points out that the NCTE regulations (which are mandatory and have to be followed by everyone), prescribed a Post Graduate Degree also as a qualification. Therefore, in order to bring in uniformity and to improve the standards of education the State Government decided to follow the NCTE regulations. It is submitted that the subsequent G.O. dated 05.11.2018 is only issued to fill up the gap / omission. He submits that this is only supplementing the existing regulations and it does not amount to changing the rules of the game. It is also submitted that the rules of a game have not been changed at all. Further submissions are also made that these are matters which are best left to the experts and the experts have decided to fix the educational qualifications. Therefore, a submission is made that the Courts should lightly interfere in this matter.

On behalf of the implead petitioners Sri A.Rajendra Babu and others have argued in line with supporting the case advanced by the learned Additional Advocate General. It is pointed out that merely by including Post Graduates and permitting Post Graduate Degree holders to participate in the selection, the petitioners are not deprived of any rights and that they could participate in the process. It is also argued that the implead petitioners-present respondents participated in the process by virtue of the interim orders granted in O.A.No.2516 of 2018 and that, therefore, the procedure should be allowed to go to its logical conclusion. There is a review petition pending i.e., I.A.No.1 of 2020 in W.P.No.19757 of 2020 and as per the orders passed in W.P.No.9118 of 2020 and Batch no further orders can be granted as the learned single Judge has already hold that since I.A.No.1 of 2020 in W.P.No.19757 of 2020 is pending no directions can be issued. Learned counsel submits that all these facts are suppressed in the present Writ Petitions and that on the ground of suppression of facts the Writ Petition can be dismissed.

COURT:
As mentioned earlier the first Notification was issued on 26.10.2018. The second Notification, which is the subject matter of the challenge, is issued on 05.11.2018. In this second Notification, Post Graduate Degree in Telugu is prescribed as an additional qualification. The stand taken by the petitioners is that this is only possible by amending the rules framed under Article 309 of the Constitution of India. While the respondent-State urges that it has the power to issue the supplemental notifications to supplement an obvious error.
This Court notices that on 19.11.2014, G.O.Ms.No.38 was issued for the purpose of framing the rules for the A.P.Teacher Eligibility Test. In this G.O.Ms.No.38, dated 19.11.2014 it is clearly specified that the norms and conditions of the eligibility criteria provided by NCTE are being followed. For a School Assistant in Telugu a Post Graduate Degree in Telugu is prescribed. Similarly, for the Language Pandit (Telugu) also Post Graduate Degree in Telugu is one of the qualifications. There are the two tests for which the petitioners are agitating. This is the recruitment G.O. prior to the impugned GOs under challenge. This Court also notices that G.O.Ms.No.67, dated 26.10.2018 clearly states that the rules are framed under Article 309 of the Constitution of India and The Right of Children to Free and Compulsory Education Act, 2009 (in short “the Education Act”) by duly incorporating the norms and conditions of eligibility prescribed by the NCTE. This fact is clearly asserted in paragraph 19 of the counter affidavit filed by the respondent-State. This aspect of incorporating the Post Graduate Degree in Telugu in line with the NCTE regulations etc., is not denied by way of filing any rejoinder etc. Similarly, on 04.05.2018, G.O.Ms.No.25 was issued. In this case also for the language teachers, Post-Graduation in the language concerned and Language Pandit Certificate etc., was prescribed. This G.O. was also issued pursuant to the NCTE Notification dated 23.08.2010 and the NCTE guidelines. Learned Additional Advocate General also relied upon the judgment reported in State of Uttar Pradesh and Others v Shiv Kumar Pathak and Others1 to argue that the State Government was under the obligation to act as per the Notifications of the NCTE and not to prescribe anything contrary. It is also argued that the qualifications prescribed by the NCTE are binding.

This Court also notices that the NCTE has been formed under the Central enactment called NCTE Act. The power to fix the minimum standards of education for school teachers is granted expressly under Section 12 (A) of the NCTE Act. These statutory provisions viz., Section 12 which deals with the functions of the NCTE and Section 12 (a) of the NCTE Act were considered by the Hon’ble Supreme Court of India in the judgment referred to above. Section 23 of the Education Act was also considered by the Hon’ble Supreme Court of India in the judgment referred to above. Thereafter, the Hon’ble Supreme Court of India held that the NCTE acting as an academic authority under Section 23 of the Education Act as well as Section 12 and 12 (A) of the NCTE Act was empowered to issue the Notifications. It is held that these Notifications are 1(2018) 12 SCC 595 binding on the State. The Council’s power to prescribe the educational qualification for Teachers (Section 12) and to maintain the standards (Section 12-A) is very clear. The pan India application of the Act and its purpose are clear from the aim and objects also (Act 73 of 1993).

In view of the fact that the Notifications are issued under Central enactment and the power of the authority constituted under the Central enactment has been upheld by the Hon’ble Supreme Court of India, this Court is of the opinion that the respondent-State was also bound by law to follow the same. The NCTE and Education Acts are both Central enactments and as such they would prevail over the State made laws. There is no “State” law holding this field also. Even for earlier selections the Post Graduate Degree was prescribed as is apparent.

The next question that arises was even if the Central enactment and the Notifications prescribed thereunder will prevail, did the State have the power to amend or to change the existing Notification? It has been asserted right from the beginning by the State that they have the power to issue this subsequent Notification in order to supplement the missing educational qualifications. Learned Additional Advocate General argued that the candidates with Post Graduate Degree should also be allowed to participate in view of the guidelines issued by the NCTE. It is his submission that the subsequent G.O. dated 05.11.2018 was issued to substitute and supplement the gap which occurred in the original Notification. He points out that the 14 clarifications are essentially “substitutions”. Relying upon the literal language in G.O.Ms.No.70, dated 15.11.2018, learned Additional Advocate General points out that the words used in Para 4(2)(i)(f) shall be “substituted” as follows:

“Must possess a Bachelor's Degree with Telugu as the main subject or one of the three equal optional subjects or Bachelor's Degree in Oriental Language in Telugu (B.O.L) or its equivalent or a Post Graduate Degree in Telugu and B.Ed., with Telugu as methodology Subject or Telugu Pandit Training or its equivalent.”

It is his contention that this is merely supplementing or adding to the existing qualifications and not supplanting the same or replacing the same.

Relying upon Sant Ram Sharma v State of Rajasthan and Others2 in para-7 learned Additional Advocate General argued that while the Government cannot amend or supersede statutory rules by administrative instructions if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules. These rules / instructions however should not be inconsistent with the rules already framed. He also relies upon O.P.Lather and Others v Satish Kumar Kakkar and Others 3. He essentially relies upon 2 AIR 1967 SC 1910 3(2001) 3 SCC 110 paragraphs 8 and 9 of this judgment. Relying upon this judgment learned Additional Advocate General submits that a clarification issued by the Government cannot be considered as an amendment. He also points out that in this decision the Hon’ble Supreme Court of India reiterates the earlier words of caution in paragraph 14 by holding that it is wise and safe for the Courts to leave the decision on academic matters to experts. He also relies upon Dhanjay Malik and Others v State of Uttaranchal and Others4. He points out, in this judgment the Hon’ble Supreme Court of India reiterated the legal position that if there is a gap and a silence on any particular point the Government can issue instructions which are not inconsistent with the rules already framed. In addition, learned Additional Advocate General also argues that the Hon’ble Supreme Court of India commented on the conduct of the parties, who participated in the examination process and are then challenging the same. Learned Additional Advocate General relies on this finding that the people who participated in the examination cannot challenge the process. In the opinion of this Court the submissions of the learned Additional Advocate General are relevant and carry weight. The case law also supports his contentions. There is a discernable gap in the first notification, which had to be clarified to bring it in line with NCTE regulation. The last judgment that this Court finds of much relevance to the issue which is cited by the learned 4(2008) 4 SCC 171

Additional Advocate General is the judgment in V.Lavanya and Others v State of Tamil Nadu and Others5. In this case also if the facts are examined the NCTE had laid down certain minimum questions and the first TET examination was conducted on 12.07.2012. The supplementary TET was conducted on 14.10.2012. The third TET was conducted on 17.08.2013 and 18.08.2013. After this third TET was conducted, the relaxation of 5%marks for passing the examination was given on 06.04.2014. This was challenged before the Hon’ble Supreme Court of India. The Hon’ble Supreme Court of India ultimately held that the Government has not changed the rules of selection.
As far as the present applicants are concerned also the marks and the academic qualifications still remain the same. The age bracket remains the same. All other parameters and the selection process remains the same. In a similar situation the Hon’ble Supreme Court of India clearly held as follows in paragraph 34 “we entirely agree with the view taken by the Madras Bench that by merely allowing more persons to compete the petitioners cannot contend that their accrued rights had been taken away”. This court also finds that the rights of the petitioners have not been taken away by allowing Post Graduate Degree holders to apply. The contentions of the Additional Advocate General are thus upheld on this point also. 5(2017) 1 SCC 322

One other question that remains to be answered is whether the rules of the game have actually been changed in this case? As per the original notification the applications have to be submitted between 01.11.2018 to 15.11.2018, the last date for uploading the applications is 16.11.2018. Long before this last date for uploading the application was reached the supplementary GO No.70, dated 05.11.2018 was issued. These dates are evident from a reading of the Notification itself. Examinations were scheduled to be held between 06.12.2018 to 02.01.2019. The School Assistant examination in Telugu was scheduled to held on 11.12.2018 and the language Pandit Examination for Telugu was scheduled to be held on 27.12.2018. Long prior to that itself on 05.11.2018 the second G.O. was issued. The game has not really “begun” in this case for this submission to be accepted. In additional the findings in V.Lavanya and others case (5 supra) support the respondents’ submissions. The issue about “rules of the game” being immutable / unchangeable is also pending before the Hon’ble Supreme Court of India (Tej Prakash Pathak and Others v Rajasthan High Court and others6). The matter was referred to a Larger Bench.

It is also clearly stated in the subsequent G.O. dated 05.11.2018 that the existing paragraphs shall be “substituted” with the new paragraph and ultimately in paragraph 15 of the 6(2013) 4 SCC 540 G.O., dated 05.11.2018 is clarified that these orders shall come into force with effect from the date of issue of the G.O.Ms.No.67 dated 26.10.2018. This Court has to agree that the petitioner’s rights are not trammeled or taken away in any manner. The educational qualifications remain the same; the age criteria remains the same; the examination remains the same and the selection process remains the same. Certain number of additional candidates with a Post Graduate Degree were allowed to participate in the examination. This may increase the competition but beyond that there is no tangible direct loss to the petitioners nor are their vested rights effected.

The ultimate objective of the NCET and TET examination of selecting the best teachers for imparting of education in the school level cannot be lost sight off. If the State wishes to recruit people with higher qualification it cannot be prevented from doing so. Therefore, this Court is of the opinion that the supplementary G.O., has not altered or changed the rules of a game.

This Court while exercising the power of judicial review is also concerned with the “decision making process”. The need or necessity to prescribe its educational qualifications is not a matter of judicial review. Who is best suited for the post? What is the pool from which the selection is to be made etc., are matters for the experts alone. The decision making process alone is the subject of judicial review. In the case on hand, this Court does not find proper pleading and proof that the subsequent introduction of PG Degree is for an ulterior motive or for a mala fide purpose. The State pleaded clearly that in order to ensure that the NCTE regulations and standards are followed the supplementary G.O. was issued. This Court does not find any reason to suspect the explanation given by the State. No material is placed by the petitioners to doubt the reason. In addition, as noticed earlier even in the earlier Notification issued like G.O.Ms.No.38, dated 19.11.2014 a Post Graduate Degree is prescribed both for School Assistant and for Language Pandit.

The conduct of the petitioners also disentitles them in review. As mentioned earlier the Notification was issued in November, 2018 and these Writ Petitions are filed in April, 2021 and May, 2021, which is long after the procedure has been completed. The petitioners, who participated in the examination process and have applied for the same cannot question the actions of the recruitment agency, and in particular the selection criteria.

Sri P.V.Krishnaiah learned counsel for the petitioners in W.P.No.10034 of 2021 also cited a judgment reported in Zahoor Ahmad Rather and Others v Sheikh Imtiyaz Ahmad and Others 7 on the issue of lack of fundamental qualifications etc. This case, in the opinion of this Court, does 7(2019) 2 SCC 404 
not apply to the facts and circumstances of this case. In addition, the submission that candidates with any Degree can acquire a Post Graduate Degree without doing a Bachelor Degree in Arts in Telugu is not borne out by the record. The material available with this Court does not lead to a conclusion that the M.A. Telugu Degree holders have acquired their Master Degree without possessing a Degree in Telugu as a main subject.

Therefore, for all these above mentioned reasons, this Court is of the opinion that the Writ Petitions have to fail. Accordingly, both the Writ Petitions are dismissed. There shall be no order as to costs.

However, no further consequential directions can be issued in view of the fact that in W.P.No.9118 of 2020 and Batch a learned single Judge of this Court has held as the review petitions etc., are pending, no further orders can be granted.

Consequently, the Miscellaneous Applications pending, if any, pending shall also stand dismissed.

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