Judicial
review in policy matter which is wisdom of the policy, cannot be judicially scrutinised,
though the Court can consider whether the policy is arbitrary or violative of law.
National Council for Teacher Education Act, 1993 - Right of Children to Free and Compulsory Education Act, 2009 - M.P. School Education Service (Teaching Cadre), Service Conditions and Recruitment Rules, 2018
The
subsequent circulars issued for the purpose of posting by counselling
prescribing qualifications as per the National Council for Teacher Education
Act, 1993; the Right of Children to Free and Compulsory Education Act, 2009;
and the M.P. School Education Service (Teaching Cadre), Service Conditions and Recruitment
Rules, 2018 would not amount to change of rule of game, as it does not relate
to selection for appointment. [Paras 16 & 27]
HIGH
COURT OF MADHYA PRADESH : JABALPUR
Single
Bench: Hon’ble Shri Justice Vijay Kumar Shukla, Judge
25.01.2019)
W.P.
No.10709/2017
Santosh Kumar Shrivastava -Versus- State of M.P. and others
and connected writ petitions
W.P.No.10873/2017,
W.P.No.10967/2017, W.P.No.12554/2017, W.P.No.12845/2017, W.P.No.17108/2018,
W.P.No.17126/2018, W.P.No.17132/2018, W.P.No.17138/2018, W.P.No.17141/2018, W.P.No.17209/2018,
W.P.No.17254/2018, W.P.No.17280/2018, W.P.No.17356/2018, W.P.No.17371/2018,
W.P.No.17374/2018, W.P.No.17416/2018, W.P.No.17481/2018, W.P.No.17529/2018, W.P.No.17539/2018,
W.P.No.17547/2018, W.P.No.17553/2018, W.P.No.17565/2018, W.P.No.17576/2018,
W.P.No.17662/2018, W.P.No.17780/2018, W.P.No.17781/2018, W.P.No.17839/2018, W.P.No.17933/2018,
W.P.No.18110/2018, W.P.No.18208/2018, W.P.No.18409/2018, W.P.No.18460/2018,
W.P.No.18736/2018, W.P.No.19348/2018, W.P.No.19551/2018, W.P.No.19983/2018, W.P.No.20175/2018,
W.P.No.20863/2018, W.P.No.20872/2018, W.P.No.22026/2018, W.P.No.22208/2018,
W.P.No.22390/2018, W.P.No.26382/2018, W.P.No.27507/2018.
Appearances: Shri Prashant Singh, Senior Advocate assisted by Ms. Vineeta
Sharma, Shri K. C. Ghildiyal, Shri Neeraj K. Tiwari, Shri K. S. Thakur, Ms.
Jayalakshmi Iyer, Shri Vikas Sharma, Shri Jitendra Arya, Shri Vinod K. Mishra,
Shri Anshul Tiwari, Shri Jitendra K. Tiwari, Shri R. K. Tiwari, Smt. Sudha
Gautam, Shri R. K. Tripathi, Dr. Anil Kumar Pare, Shri Alok Kumar, Shri S. K. Mishra,
Shri R. P. Dubey, Shri L. P. Mishra, Shri R. K. Chand, Shri V. D. S. Chauhan,
Ms. Ranjana Sisodiya, Shri Satyendra Jyotshi, Shri Sanjeev Tuli, Shri Sanjay K.
Singh, Shri A. D. Mishra, Shri V. P.S. Parihar and Shri Shailesh Tiwari,
Counsel for the petitioners. Shri Girish Kekre, Government Advocate for the respondents/
State.
O
R D E R
All
these writ petitions involve a common issue, therefore, they are being heard
analogously and decided concomitantly by a common order.
2.
These petitions have been preferred by
the petitioners who are working as Lecturers, Upper Division Teachers (UDT),Varishtha
Adhyapaks and Adhayapaks [hereinafter referred to as “the candidates”] in
Government Model Schools and Schools of Excellence [for short “the SOE”]
challenging the legality and propriety of the Circulars/Instructions issued by
the respondents, dated 3-7-2017, 12-7-2017, 24-7-2018 and the communication
dated 27-8-2018, whereby the respondents are conducting Online Examination of
the teachers of the respective cadre deployed in the Model Schools/SOE, in
order to enhance the quality of education in the aforesaid educational
institutions by selecting eligible and competent teachers working in the School
Education Department.
3.
For the sake of clarity and
convenience, and in order to avoid repetition, the facts adumbrated in W.P. No.17138/2018 [Shailesh
Pathak and others vs. State of M.P. and others] are noted. The petitioners contend that
they have been working in the Model Schools/SOE after their selection by the
Selection Committee which was conducted in the year 2010. Since they have been producing
excellent results, therefore, they cannot be compelled to participate again in
the Online selection process, as they have already undergone selection process
and thereafter they have been selected in the year 2012 as well. It is
submitted that no syllabus was prescribed for the Online Examination being
conducted by the respondents. It is strenuously urged that though they are
producingexcellent results but, they are being asked to compete along with the teachers
working in the lower cadres, viz. Shiksha Karmis or contract teachers. In some
of the petitions a challenge has also been made to the Instruction, dated
24-7-2018 issued by the respondents after the Online Examination, wherein it
has been provided that the candidates who have qualified the Online Examination,
would be given postings in Model Schools/SOE. In the previous Circular/Instructions
dated 3-7-2017, such candidates were required to give choice of 20 Model
Schools/SOE wherein they wished to get them posted, but by the communication,
dated 24-7-2018 the same has been changed and it is stipulated that they have
to give choice for posting in the Model Schools/SOE within the same districts where
they are recently posted. It is urged with vehemence that by changing the
criteria of selection, the respondents have changed the Rule of Game.
4.
On the bedrock of these contentions, it
is submitted that the impugned Circulars/Instructions issued by the Government,
are arbitrary and violative of Articles 14and 16 of the Constitution of India
and change of selection criteria after commencement of the selection, is
contrary to the law laid down by the Apex Court in the judgments rendered in
the cases of Maharashtra
State Road Transport Corporation and others vs. Rajendra BhimraoMandve and
others, (2001) 10 SCC 51 and Tamil Nadu Computer Science B.Ed.
Graduate Teachers Welfare Society (1) vs. Higher Secondary School Computer
Teachers Association and others, (2009) 14 SCC 517. Learned counsel for the petitioners also
referred the order passed by a Co-ordinate Bench of this Court in the case of Abhishek Shrivastava vs. State of
M.P. and another, [W.P. No.17591/2018, dated 12-9-2018].
5.
Per contra, learned counsel for the
respondents-State submitted that the State Government has taken a
policy-decision with regard to posting of eligible teachers (candidates) in the
Model Schools/SOE in order to provide excellent environment and quality education
in the school education keeping in view the provisions enshrined in the Right
of Children to Free and Compulsory Education Act, 2009 [hereafter referred to
as “the Act”], the School Education Department has established, Model Schools
at the District level and Schools of Excellence (SOE) in the Block level. The School
Education Department has upgraded the schools and is running 235 Schools of
Excellence and 201 Model Schools in the State. Earlier, monitoring of Model
Schools was being done by the Central Government and now the same is being done
by the State Government through School Education Department.
6.
On clarification of the query being
made by this Court regarding admission in the Model Schools and the SOE,
learned counsel for the respondents submitted that the admission to these schools
for 41 District level Schools of Excellence and 201 Block level Model Schools
in 9th Class
for academic session 2019-2020 is done by conducting admission test. He
produced a copy of the communication dated 7-01-2019, issued by the
Commissioner, Public Instructions, M.P. addressed to the Director, M.P. Open School
Education Council. He also produced a copy of the Circular dated 28-7-2018
issued by the Commissioner, Public Instructions clarifying that candidates
having B.Ed. qualification be selected for posting in Model Schools and SOE. In
sum and substance, the argument is that it was a policy decision of the State
to improve the quality of education in these identified educational
institutions and, therefore, a decision was taken by the respondents to
introduce an Online Examination for postings of teachers (candidates) in the Model
Schools and SOE, to be selected on merits. He argued that the Instructions
issued after the Online Examination dated 28-7- 2018 does not amount to change
of the Game of Rules. It deals with the procedure for counselling and the
condition of Bachelor of Education (B.Ed.) qualification in addition to the
Postgraduate (PG) qualification which was introduced keeping in view the
provisions of the RTE Act and NCTE notification. It is further submitted thatthe
State Government has framed rules for appointment of teachers in the School
Education Department working on different posts viz. Adhyapak, Varishtha
Adhyapak, Shiksha Karmis, Class-I and contract teachers etc., namely, Madhya
Pradesh School Education Service (Teaching Cadre), Service Conditions and
Recruitment Rules, 2018 [hereinafter referred to as “the Rules 2018”]. Under
the said Rules the said cadre has been made a District level cadre and the
qualification of B.Ed. has been made an essential qualification. Keeping in
view the provisions envisaged in the Act, a decision was taken to select
candidates having qualification of B.Ed. for posting in Model Schools and SOE.
7.
Counsel for the respondents-State, in
order to substantiate his contentions referred the orders dated 31-10-2017 passed
by a Co-ordinate Bench of this Court in W.
P. No.4406/2017 [Ganesh Kalmodiya vs. School Education Department]; W.P. No.10549/2017
[Narmada Prasad Mishra and others vs. State of M.P. and others], dated
21-11-2017; and W.P. No.17000/2018 [Suresh Singh
Sikarwar vs. School Education Department] dated 30-7-2018. He also submitted that since the
matter pertains to policy of the State Government, therefore, no interference
is warranted in the writ jurisdiction. To bolster his submission, learned counsel
for the State referred to the judgments rendered in the casesof Tamil Nadu Education Department
Ministerial and General Subordinate Services Association and others vs. State
of Tamil Nadu and others, (1980) 3 SCC 97; State of Punjab and others vs. Ram
Lubhaya Bagga and others, (1998) 4 SCC 117; State of Himachal Pradesh and
others vs. Himachal Pradesh Nizi Vyavsayik Prashikshan Kendra Sangh, (2011) 6
SCC 597; and State of Jharkhand and others vs.
Ashok Kumar Dangi and others, (2011) 13 SCC 383.
8.
Regard being had to the similitude in
the present batch of writ petitions and the arguments advanced on behalf of the
parties, the cases which have cropped up for consideration, can be summarised
in three categories :
I. The teachers who are working in the Model Schools and
SOE by virtue of their posting in these schools but, have never undergone any
selection process.
II. The teachers/candidates who are posted in the Model
Schools and SOE after their selection by the Selection Committee at District
level in pursuant to the previous instructions, therefore they need not to undergo
a fresh selection process, as they have produced excellent results and the
object of the policy of the Government is already achieved.
III. The writ petitioners - candidates who have participated
Online selection process introduced by the impugned Instruction dated 3-7-2017,
are aggrieved with the Circular or Instructions dated 24-7-2018 and 28-7-2018
whereby option for posting in Model Schools and SOE was changed to give option
for their posting in Model Schools and SOE situated in the same District where
they are posted at present and qualification of B.Ed. was prescribed for
posting by counselling in addition to PG qualification keeping in view the provisions
of Section 23 of the Right of Children to Free and Compulsory Education Act,
2009; NCTE Notification; and M.P. School Education Service (Teaching Cadre)
Service Conditions & Recruitment Rules, 2018.
9.
In regard to the first category of
cases, where the candidates are posted in the Model Schools and SOE without undergoing
any kind of selection process, the learned Senior Counsel for the petitioners
submitted that the petitioners are possessing the educational qualifications of
PG and B.Ed., and while their postings in the Model Schools/SOE they have
produced excellent results as well. He also referred to various documents to prove
that the result produced by these teachers was in-between 90% to 100%. Since
the Government has already achieved the optimum level of education by posting
of these teachers, therefore,they cannot be compelled to undergo any further
selection process. It is also contended that the Government has introduced the
policy without any exercise, preparation and spadework. It is vehemently urged
that some of the petitioners are at the verge of retirement and at this stage,
shifting of these teachers to other schools may be prejudicial to the interest
of the students and the Schools as well.
10.
In the second category of the writ
petitions, the candidates-teachers who have already undergone the selection by the
District Level Committee before their postings in the Model Schools/SOE, the
learned Senior Counsel appearing for the petitioners submits that since they
had already undergone selection process, thereof, they cannot be compelled to
undergo a fresh Online selection/examination for their posting. In this batch
of writ petitions the results produced by teachers in these schools is also referred.
Learned senior counsel for the petitioners vehemently canvassed that by holding
an Online examination by the respondents, no objective would be achieved, as
the optimum level of education, is already achieved by the Government.
11.
In the third category of the writ
petitions, the teacherscandidates have already participated in the Online
Examination in pursuance of the Circulars dated 3-7-2017, 12-7-2017 and 24-7-2017,
are aggrieved with the Instructions dated 24-7-2018 and 28-7- 2018, whereby the
condition regarding submissions of 20 options for postings of their choice in
the schools was changed, by confining it to give their choice for posting in
the Model Schools/SOE, situated within the districts where they are posted at
present. Though the Circular/Letter dated 28-7-2018 is not challenged in the present
writ petitions but they argued that prescription of B.Ed. qualification in
addition to P.G. qualification for posting in the Model Schools/SOE is
arbitrary, as it amounts to changing rule of game. The Circular dated 28-7-2018
was produced by the learned counsel for the State.
12.
Learned counsels appearing for the
petitioners argued that the Instruction dated 24-7-2018 amounts to change of
the rule of game. It is putforth that their choice could not have been restricted
to the district itself and, therefore, they should have been permitted to give
option for 20 schools – Model Schools/SOE in the entire State. The curtailment
of submission of choice is arbitrary and violative of the Article 14 of the
Constitution of India and, therefore, the impugned circulars/instructions are
illegal, arbitrary and capricious.
13.
I do not find any force in the
aforesaid contentions portrayed on behalf of the petitioners. The substantive
posts of the writ petitioner are Lecturers, Shiksha Karmi, Grade-I, Varishtha Adhyapak,
Pradhan Adhyapak, Samvida Shiksha Varg – I, Shikshak (UDT) and Adhyapak. The
respondents have specifically pleaded that by posting of these teachers/writ
petitioners in the Model Schools/ SOE, no special right is created in their
favour and such teachers who are appointed in the Model Schools/SOE, will not
get any special allowance or incentives. It is also submitted that the questioned
Online examination will not affect the service conditions and avenue of
promotion etc. of the teachers. The relevant part of the Circular, dated
3-7-2017 reads as under:
[Omitted]
14.
Learned counsel for the State also
submitted that in some posting orders the word “on deputation” has been used,
which is nothing but wrong dispel of the word “posting”, as teachers arenot on
deputation in the Model Schools/ SOE. He putforth that the State Government has
issued a policy on 31st March 2002 regarding identification of
the Schools of Excellence. Initially, monitoring of the Model Schools was being
done by the Government of India, later the same is entrusted to the State
Government. The schools have been upgraded as Schools of Excellence (SOE) and
Model Schools in the State to cater the needs for better performing of the students,
who are admitted in these Schools through a test, therefore, there is ardent
need to post suitable teachers in order to impart quality education. They are
not conferred any special benefits of allowance, incentives and promotion and
their service conditions and promotional avenues remain intact. They are
initially posted for two years and it is extendable for further one year,
subject to recommendation of the Screening Committee and if a teacher further
wishes to continue in such schools, he will have to participate in the Online
Examination.
15.
The writ petitions were filed at
different stages of the Online Examination. In some petitions interim order was
passed allowing the writ petitioners to appear in the Online Examination, however,
the same was made subject to final outcome of the petitions. The respondents
have stated that 10380 candidates had appeared in the examination and out of
the existing 3744 teachers1526 teachers who are already working in these
schools, appeared in the Online Examination. Thus, the Online Examination,
pursuant to the Circular dated 3-7-2017, has already taken place. In some places
posting orders could not be issued because of the interim orders.
16.
Coming back to the challenge of the
Circulars dated 3-7- 2017, 12-7-2017 and 24-7-2018, it is luminescent that the teachers/candidates
are required to appear in the Online Examination for their postings in the
Model Schools/SOE. The said procedure does not contemplate any procedure for
recruitment or appointment. The petitioners are already in-service and they are
imparting education. The petitioners have failed to establish their any right
to remain posted in the Model Schools/SOE. The transfer and posting of an
employee is in the absolute domain of the employer. It is a pure administrative
matter. It is settled law that transfer and posting is an incident of service
and the courts cannot interfere with the transfer or posting, unless the same
is in violation of any statutory rules. The Supreme Court in the case of State of U.P. and another vs. Siya
Ram and another, (2004) 7 SCC 405 held
that an employee should be posted where it has to be decided by the employer
and an employee has no right to claim posting at a particular place. The
relevant extract reads as under:-“5. The High Court while exercising
jurisdiction under Articles 226 and 227 of the Constitution of India had gone
into the question as to whether the transfer was in the interest of public
service. That would essentially require factual adjudication and invariably
depend upon peculiar facts and circumstances of the case concerned. No government
servant or employee of a public undertaking has any legal right to be posted forever
at any one particular place or place of his choice since transfer of a
particular employee appointed to the class or category of transferable posts
from one place to other is not only an incident, but a condition of service,
necessary too in public interest and efficiency in the public administration.
Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation
of statutory provisions prohibiting any such transfer, the courts or the tribunals
normally cannot interfere with such orders as a matter of routine, as though
they were appellate authorities substituting their own decision for that of the
employer/management, as against such orders passed in the interest of administrative
exigencies of the service concerned. This position was highlighted by this Court
in National
Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan, (2001) 8 SCC 574.”
17.
The law relating to scope of
interference in the transfer/posting matter is no longer res integra, as held by the Supreme Court in the
cases of Gujrat
Electricity Board and another vs. Atmaram Sungomal Poshani, (1989) 2 SCC 602; Union
of India and others vs. S.L. Abbas, AIR 1993 SC 2444 and the judgment passed by a Division
Bench of this Court in the case of R.S.
Choudhary vs. State of M.P. and others, 2007 (2) ILR MP Series 1329, the transfer is an incidence of service
and the transfer order can only be interfered by the Courts of law if the
transfer isissued in violation of the statutory rules or the order suffers from
malafide exercise of power.
18.
In regard to prescription of B.Ed.
qualification in the counselling for posting, it is condign to refer the Madhya
Pradesh School Education Service (Teaching Cadre), Service Conditions and Recruitment
Rules, 2018 [hereinafter referred to as `the Rules 2018] which prescribe
eligibility conditions fixed as per Schedule III of the said Rules. The
educational qualification as per Schedule III appended to the Rules is Master’s
Degree in the relevant subject with second division and Bachelor of Education
(B.Ed.) or its equivalent. The relevant extracts of the Rules read as under:
“8.
Conditions of eligibility for
direct recruitment. - In
order to be eligible for participating in the Teacher Eligibility Examination,
a candidate must fulfil the following conditions, namely :-
(1)
Age - *** *** ***
(2)
Educational qualifications : Educational qualifications shall be
as per column 5 of Schedule III.
Provided
that, - (a) Barring the provisions for educational qualifications under the
Right of Children to Free and Compulsory Education Act, 2009, the Government,
in exceptional cases may treat a candidate as qualified who, though not
possessing the qualifications prescribed in these rules,has passed the
examinations conducted by other institutions by a standard which, in the
opinion of Government, justifies the consideration of the candidate for selection.
(b)
The Government on its own discretion, may consider the cases of those
candidates who are otherwise qualified but have received degree from a foreign
University which is not designated as a University recognized by the Government.
(3)
Teacher Eligibility Examination. - For direct recruitment on the post
of teachers, it shall be mandatory to pass the Teachers Eligibility Examination
with the percentage as prescribed in sub-rule (5) of Rule 11.
***
*** ***
Schedule
– III (See Rule 8) Sr. No. Name of posts Minimum age limit Maximum age limit Educational
qualification Remarks (1) (2) (3) (4) (5) (6) I. Ucch Madhyamik Shikshak 21
years As per instruction s of General Administr ation Departme nt Masters
Degree in the relevant subject with second division and Bachelor of Education
(B.Ed.) or its equivalent 1. Passed Teacher Eligibility Examination with the percentage
as prescribed in sub rule (5) of rule 11 2. The minimum qualification for Ucch Madhyamik
Shikshak (Sanskrit) of Sanskrit school shall be Acharya degree in second
division in Sanskrit literature/grammar etc.
from
a recognized institution/University.”
19. The aforesaid qualification has been
prescribed in reference to the qualifications prescribed by the National
Council for Teacher Education, which is published in the Gazette of India,dated
12-11-2014. It contemplates that a candidate must possess such minimum
qualifications as laid down by the Academic Authority authorised by the Central
Government by publishing a notification in that behalf. Section 23 of the Right
of Children to Free and Compulsory Education Act, 2009 [hereinafter referred to
as “the Act”] and the relevant extracts from the Notification read thus:
“23.
Qualifications for appointment and terms and conditions of service of
teachers.- (1) Any person possessing such minimum qualifications, as laid down
by an academic authority, authorised 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.
Provided
further that every teacher appointed or in position as on the 31st March, 2015,
who does not possess minimum qualifications as laid down under sub-section (1),
shall acquire such minimum qualifications within a period of four years from
the date of commencement of the Right of Children to Free and Compulsory Education
(Amendment) Act, 2017.(3) The salary and allowances payable to, and the terms
and conditions of service of, teacher shall be such as may be prescribed.” ***
*** *** First Schedule {See Sub-regulation (2) of Regulation (4)} The National
Council for Teacher Education (Determination of Minimum Qualifications for
Persons to be recruited as Education Teachers in Preprimary, Primary, Upper
Primary, Secondary, SeniorSecondary or Intermediate Schools or Colleges)
Regulations, 2014 LEVEL MINIMUM
ACADEMIC AND PROFESSIONAL QUALIFICATION ... … 4. Secondary/High School (For
Classes IXX) (a) Graduate/Post Graduate from recognized University with at
least 50% marks in either Graduation or Post Graduation (or its equivalent) and
Bachelor of Education (B.Ed.) from National Council for Teacher Education recognized
institution.
***
*** ***
20.
The National Council for Teacher
Education, an academic authority authorised by the Central Government, vide Notification
dated 12-11-2014 prescribed the professional qualification for Secondary/High
School (For Class IX-X) as Graduate/Post Graduate from recognized University
with at least 50% marks in either Graduation or Post Graduation (or its equivalent)
and Bachelor of Education (B.Ed.) from National Council for Teacher Education
recognized institution.
21.
The National Council for Teacher
Education Act, 1993 provides that the B.Ed. qualification is an essential
qualification for the teachers. Thus, if the respondents have decided to post
the teachers who are having B.Ed. degree in addition to PG Degree, in the Model
Schools/SOE, the same cannot be held to be arbitrary, as it is in consonance
with the provisions of the Act and the Rules 2018. Change of option can also
not be held to be arbitrary, as the post of teacher has been made a district
cadre post as per Rules 2018.
22.
Thus, the respondents decided to select
the candidates having B.Ed. qualification for posting in Model Schools and SOE
in view of the qualifications prescribed under the Recruitment Rules, 2018 and
the Right to Children Free and Compulsory Education Act, 2009, which cannot be
held to be illegal or arbitrary.
23.
The contention of the petitioners that
issuance of the impugned Instruction dated 24-7-2018 for the first and second
round of counselling, issued by the Commissioner, Public Instructions, M.P.,
Bhopal, amounts to change of Game of Rules, can also not be appreciated. The
entire exercise is being done by the respondents by issuance of the policy for
posting of teachers in the Model Schoolsand SOE which does not relate to any selection,
therefore, the same cannot be construed to change of Game of Rule. As already
held, transfer and posting of an employee is within the domain of the employer
and, therefore, if the respondents have issued the Instructions, dated
24-7-2018 curtailing the choice/option from the 20 educational institutions to
the schools in the District, their posting cannot be held to be arbitrary. A
Co-ordinate Bench of this Court in the case of Suresh Singh Sikarwar (supra), decided on 30-7-2018 examined the
Circular dated 24-7-2018 dismissed the writ petition in limine and held that there was no condition
that the options were required to be given for the entire State and confining it
to the District, was found to be valid as in the Rules 2018, the teacher is a
District Cadre post.
24.
The petitioners have relied on the
judgment passed by a Co-ordinate Bench of this Court in the case of Abhishek Shrivastava (supra). The said judgment has been
distinguished by another Co-ordinate Bench of this Court at Gwalior in the case
of Vinod Singh Chauhan and another
vs. State of M.P and others [W.P. No.21104/2018, dated 03-10-2018] holding that the said judgment is per incuriam. The relevant paras of the judgment
read thus:
“5.
The stark distinguishing feature in the present case is that it does not
involve any process of recruitment. The policy vide Annexure-P/2 neither involves
direct recruitment nor promotion. The service conditions/benefits presently
available to the Adhayapak/Varishtha Adhyapak shall not undergo any change on
their posting at Model Schools of Excellence after being subjected to the
process of Online test and counselling.
5.1
The Model Schools of Excellence are created in every district to serve as
harbinger of excellence in the field of school thereby becoming an example for other
government schools in the district with ultimate objective of enhancing the
quality eduction.
5.2
The policy vide Annexure-P/2 dated 24-7- 2018 conducts the process of Online
test and counselling merely to hand-pick the most talented amongst the
Varishtha Adhyapaks/Adhyapaks to man the Model School of Excellence in each
district to take the campaign of excellence in school education to new heights.
6. From the above discussion, this Court has no manner of doubt
that the policy vide Annexure-P/2 or P/1 is undoubtedly a policy of “posting”
with no element of recruitment involved and therefore the reliance placed by
the Co-ordinate Bench in W.P. No.17591/2018 upon the judgment of Apex Court in K. Manjusree Vs. State of Andhra
Pradesh and aother, (2008) 3SCC 512 and Anil Bhatt and others Vs. State of M.P.
and others, 2012 (2) MPLJ 82 is
misplaced.
7. Accordingly, this Court with utmost humility at its command
is compelled to hold that judgment of the Co-ordinate Bench passed on 12-9-2018
is rendered by misreading the law laid down by Apex Court in K. Manjusree Vs. State of Andhra
Pradesh and another, (2008) 3 SCC 512 and
is thus per incuriam
and therefore, is denuded of its
presidential value thereby relieving this Court of its obligation to follow the
same.
8. Consequently, present petition deserves to be and is
therefore dismissed at the very outset.”
25.
In the case of Suresh Singh Sikarwar (supra) a Coordinate Bench of this Court
considering the Instructions dated 24- 7-2018 held that the said Instructions
are not arbitrary, as the post of Teacher is a district cadre and, therefore,
the respondents have rightly curtailed the choice of posting to the district
where the candidate is already posted. In view of the aforesaid provisions, this
Court does not find any illegality or arbitrariness in giving preference to the
candidates, who are having B.Ed. qualification in addition to Post Graduation.
26.
In regard to interference in policy
matters, the Apex Court in the case of Tamil
Nadu Education Department Ministerial and General Subordinate Services
Association and others (supra) ruled
that in the matter of policy-decisions regarding servicing conditions, the
Courts cannot adopt mathematical precision in administrative actions not being
possible and cannot analyse minute administrative details.
27.
In the case of Ram Lubhaya Bagga and others (supra)
the Supreme Court has held that judicial
review in policy matter which is wisdom of the policy, cannot be judicially scrutinised,
though the Court can consider whether the policy is arbitrary or violative of
law. Same view has been reiterated in thecases of Himachal Pradesh Nizi Vyavsayik
Prashikshan Kendra Sangh (supra) and
Ashok Kumar Dangi and others
(supra).
28.
In view of the aforesaid submissions, I
do not find any illegality or impropriety in the impugned
Circulars/Instructions issued by the State Government from time to time
regarding Online examination for posting of teachers in the Model Schools/SOE,
for the following reasons :
(i) The petitioners do not have any rights to continue
their postings in the Model Schools/SOE, as they have failed to establish any
statutory right for being posted in the aforesaid Schools.
(ii) The substantive post of the petitioners is
teacher under different nomenclatures and they are engaged for imparting
education in the schools. There is no conditions either in the appointment
letter or in the Service Rules for their postings in the Model Schools or SOE
only. Therefore, there is no infringement of any fundamental rights or
statutory rights.
(iii) Service conditions of the petitioners are not adversely
affected by their non-selection in the Online examination, as it is clarified
in the Instructions dated 3-7-2017 itself and no special allowance or
incentives are attached to the said postings. Therefore, their contention that
non-selection and transfer from the Model Schools/ SOE would be detrimental to
theirinterest, has no force. Further, the decision cannot be construed as
punitive or stigmatic.
(iv) Contention of the learned counsel appearing for the
petitioners that they are being equated with the teachers working in the lower
cadres and with the unequals can also not be appreciated, as by the Online
examination, the selection is made only for the purpose of posting and not for
any appointment or promotion. Transfer and posting are administrative matters
and are purely within the domain of the employer.
(v) Contention of the learned counsel for the petitioners
that Rule of Game has been changed after commencement of the Online
Examination, can also not be appreciated, as the respondents have taken a policy-decision
in order to introduce the Online Examination only for the purpose of selection
for posting in the Model Schools/SOE, which does not consist any process of
recruitment or selection.
(vi) Requirement of B.Ed. qualification for posting
in Model Schools and SOE at the time of counselling, is in consonance with the
provisions enshrined in the National Council for Teacher Education Act, 1993; The
Right of Children to Free and Compulsory Education Act, 2009; and the Madhya
Pradesh School Education Service (Teaching Cadre), Service Conditions and
Recruitment Rules, 2018.
(vii) In addition to the aforesaid, the scope of interference
of the Court in the policy-decisions of the Government, is very limited and the
petitioners could not establish any arbitrariness or malifide.
29.
Ex-consequenti, the writ petitions being sans merits,
are dismissed. There shall be no order as to costs.