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:
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. (UNDERLINED RED COLORED 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 respondentState 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 he 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 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 panIndia application of the Act and its purpose are clear from the
aim and objects also (Act 73 of 1993).
