The Jharkhand High Court dismissed a Petition filed challenging Rule 13 of Chapter-III of Jharkhand Primary School Teachers Appointment Rules, 2012, on the ground of ultra vires of the Constitution of India.
The Petitioner has prayed to declare Rule-2 of the Jharkhand Primary School Teachers Appointment (Second Amendment) Rules, 2015, as ultra vires of the Constitution of India. Prayer has been made to quash Advertisement NO.04/2015, published by Jharkhand Academic Council for appointment of primary teachers and also to quash the entire process of selection for recruitment of teachers in primary schools pursuant to the advertisement and to the effect that the petitioner should be allowed to participate in the selection process after considering the case of the petitioner together with para- teachers considering the upper age limit to be 50 years.
Arun Kumar Dubey , counsel for the petitioner submitted that by virtue of the impugned Rule, the upper age limit of the existing para teachers who seeks regular appointment in terms of Jharkhand Primary School Teachers Appointment Rules, 2012 , has been fixed as 50 years, whereas in respect of others, the upper age limit has been fixed as per the prevalent norms that for appointment of Class-III government employee.
He submits that this is a discrimination, which is in violation of Articles 14 and 16 to the Constitution of India. As per him, one homogeneous class i.e. the General Category has been subdivided in two categories; general category of “para teachers” and general category “non para teachers” by virtue of the said Rules and age relaxation has been given only to the group of para teachers, which is not permissible as per law.
As per the petitioner, a teacher cannot constitute a different group nor can constitute special class for relaxation in age in respect of appointment. As per him, the Amended Rule (2) of the Jharkhand Primary School Teachers Appointment (Second Amendment) Rules, 2015 is also bad as it provides relaxation of seven years for para teachers. Further contention is that she being an Anganwari Sevika and working in Anganwari Kendra has been kept out of the purview of the said relaxation, which is bad, as the same is only applicable to the para teachers.
It is submitted that when the appointment of a para teacher is contractual in nature, so is the appointment of Anganwari Sevikas, all contractual employee should have been placed in the same pedestal and relaxation should have been granted, thus the Rules and the Amended Rule are absolutely bad, as the same are in violation of Articles 14 and 16 to the Constitution of India and the same should be declared as ultra vires. It is also prayed that the Advertisement No.04/2015 needs to be quashed and the selection process be set aside.
The respondents submitted that the petitioner, being an “Anganwari Sevika” , cannot be kept in the same category of a “Para Teacher”. The counsel for the respondents submitted that admittedly the petitioner is an Anganwari Sevika who stands on different footing and of a separate class by itself. He further submitted that so far as appointment of elementary teachers are concerned, the minimum qualification laid down by the National Council of Teachers’ Education (NCTE) for selection as para teacher for Class -I to V is intermediate trained and for Class-VI to VIII is graduation trained. The Para Teachers are required to transact the curriculum and syllabus developed by C.B.S.E. for Class- I to VIII and they are engaged under the Central Government sponsored scheme of Sarva Siksha Abhiyan and their service conditions including payment and honorarium are decided by the Jharkhand Education Project Committee, which is the implementing agency of ‘Sarv Shiksha Aviyan’ in the State of Jharkhand.
He submitted that some para teachers filed writ petition being WP(S) No. 3634 of 2014 praying therein to implement the recommendation of Girinath Singh Committee’s Report, as the said Committee recommended for framing of Rule governing the service conditions for para teacher including remuneration and recruitment of Assistant Teacher for permanent appointment and taking into consideration of the said recommendation, the State decided to give 50% reservation to “Para Teachers” in regular appointment of teachers in Government Elementary School and accordingly the Rule was framed for providing reservation. The Jharkhand Primary School Teachers Appointment Rules were framed and some reservation was given to para teachers as they were already working.
Further the upper age limit was enhanced to 50 years for “Para teachers” for the appointment for the post of a teacher. As per them, the para teacher is a separate class having a background of full time teaching of children from Class-I to Class-VIII in Primary/Upper Primary School, thus a policy decision has been taken by the State, which cannot be questioned by Anganwari Sevikas. The State has further stated that the government has given relaxation of seven years to all categories including the petitioner in the said appointment process. The female candidates of Un-reserved /BC/MBC Categories having age upto 45 years as on 1.8.2015 and that of SC/ST Category having age of 47 years were eligible for applying on the post of teachers. The State takes shelter of Article 309 of the Constitution regarding framing of the recruitment rules. Counsel for the respondents lastly submitted that the appointment process, pursuant to Advertisement No. 04/2015, which has been challenged in this writ petition has also been completed and the successful candidates have also joined and are working and none of the successful candidates have been made party to the litigation. As the quashing of advertisement will amount to cancellation of appointment of the successful candidates, in their absence, the challenge to the said Advertisement cannot be adjudicated. He lastly submitted that the challenge of the Rules will only remain for academic purpose.
After hearing the parties and after going through the record, the Division Bench of Chief Justice Sanjaya Kumar Mishra and Justice Ananda Sen find that the main challenge thrown by the petitioner is the Rule on the ground of discrimination between “Para Teacher ” and Anganwari Sevika. It is the case of the petitioner that the petitioner is also teaching children of Nursery School at Anganwari Nursery School/Kendra, thus she has also to be considered as a contractual teacher and should be given the same benefits, so far as age relaxation is concerned.
Rule 13 of the Rules 2012, which runs as under;
“13. The age limit prescribed by the Department of Personnel, Administrative Reforms and Rajbhasa, Government of Jharkhand for appointment to third category posts will be applicable in the appointment of teachers/instructors. Provided that in case of para teachers, the maximum age limit for all categories of candidates will be 50 years. Under this rule, for first time appointment, all categories of candidates will be given relaxation of 5 years in the maximum age limit prescribed for their category.”
From the aforementioned provision, the Court noted that the upper age limit of “Para Teacher” has been fixed at 50 years and the candidates who are appearing for the first time, irrespective of the category, would be eligible for the age relaxation of five years. Rules 2012 has been amended by an Amendment Rules of 2015. By virtue of Rule 2 of the Amended Rules, Rule 13 of the Rules 2012 was substituted, which now reads as follows;
“2. Deleting Rule 13 of Jharkhand Elementary School Teacher appointment Rule, 2012 (as amended), it is substituted as follows:- ‘the age limit prescribed by the Department of Personnel, Administrative Reforms and Rajbhasa, Government of Jharkhand for appointment to third category posts will be applicable in the appointment of teachers/instructors,. Provided that in the case of para teachers, the maximum age limit of all categories of candidates will be 50 years, but one time age relaxation can be given on following grounds:-
(i) In the second appointment to the post of intermediate Trained Teacher, categories of candidates (including para teachers) will be given a relaxation of 7 years in the maximum age limit prescribed for their category.
(ii) For the first time appointment on the post of Graduate Trained teacher in all categories (including para teachers) there will be relaxation of 7 years in upper age limit prescribed in their category.”
Thus by virtue of amended Rules, the provision of 7 years relaxation has been given to “Para Teachers” who are intermediate trained and is applying for the second time and similarly 7 years has also been given to the candidate of Graduate trained, who are applying for the first time. The petitioner being an “Anganwari Sevika”, claims the similar benefit, as has been given to para teacher.
Para teacher and Anganwari Sevika form two separate categories and class. Work-responsibilities and duties of both the classes are different. Anganwari Sevika is engaged as per the scheme floated by the Central Government known as Integrated Child Development Service (ICDS) Programme. The Rule which the petitioner is challenging relates to appointment Rules for the post of primary teacher and middle school teacher. Para teachers are already serving as teachers in schools imparting education, thus the relaxation has been given to them in the Appointment Rules. On the other hand, Anganwari Sevika may be imparting some education to the toddlers in the Anganwari Kendra, but they cannot be said to be imparting education in middle school or primary school. This difference is paramount. Since both are distinct and different class, Anganwari Sevika (the petitioner herein), cannot claim parity with para teachers, who are of a different class by itself. The Rule does not make a class within a class , the Bench observed.
In the instant case, the Amended Rule (2) of the Jharkhand Primary School Teachers Appointment (Second Amendment) Rules, 2015 is under challenge. The Supreme Court has laid down certain grounds on which the sub-ordinate legislation can be challenged. By referring several judgments of the Supreme Court, the Hon’ble Supreme Court in the case of Dental Council of India Vs. Biyani Shikshan Samiti and Anr. reported in (2022) 6 SCC 65, at paragraph 30 reiterated the grounds on which the subordinate legislation can be challenged.
Whether the rule is valid in its entirety?
- There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognized that a subordinate legislation can be challenged under any of the following grounds:
(a) Lack of legislative competence to make the subordinate legislation.
(b) Violation of fundamental rights guaranteed under the Constitution of India.
(c) Violation of any provision of the Constitution of India.
(d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any enactment.
(f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules).”
Applying the said principle, the Bench finds that none of the aforesaid grounds of challenge is attracted in this case, neither there is any manifest arbitrariness in the Rule.
Further, one of the prayer of the writ petition is the challenge to the Advertisement No. 04/2015 issued by the Jharkhand Academic Council for appointment of primary teacher and the entire appointment process. As admitted, the entire selection process has come to an end and the posts have been filled up. Not even a single selected candidate who would be affected, if the petition is allowed and the process is set aside, has been made a party by the petitioner. When the selection process is under challenge and the appointment has already been made pursuant to the advertisement, then the selected candidates are necessary party in the lis. No order can be passed in absence of selected candidate as right has accrued in their favour , the Court ordered.