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M. China Pullaiah and ors. Vs. Secretary, Medical and Health Department and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtAndhra Pradesh High Court
Decided On
Case NumberW.P. Nos. 24344 of 2003 and 9721 and 14715 of 2009
Judge
Reported in2010(1)ALT64
ActsNational Council for Teacher Education Act - Sections 2; Uttar Pradesh Basic Education Act, 1972; Constitution of India - Articles 14, 254 and 309; Andhra Pradesh Public Health Subordinate Service Special Rules - Rules 3(1)(A) and 4; Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 - Rule 8
AppellantM. China Pullaiah and ors.
RespondentSecretary, Medical and Health Department and ors.
Appellant AdvocateM. Ratna Reddy, Adv. in W.P. No. 24344 of 2003, ;J.R. Manohar Rao, Adv. in W.P. No. 9721 of 2009 and ;G.P. for Services I in W.P. No. 14715 of 2009
Respondent AdvocateG.P. for Services I for Respondents 1 to 3, ;G. Vidyasagar, Adv. for Respondents 6 and 7 in W.P. 24344 of 2003, ;P. Amarender, Adv. for Respondent No. 1 in W.Ps. 9721 and 14715 of 2009, ;G.P. for Medi
DispositionAppeal allowed
Excerpt:
.....who are interested in or aggrieved by the proposed amendment. - , graduation with diploma in health education was satisfied. 24344 of 2003 as well as for contesting respondents in wp no. it is well settled that rule making authority is entitled to frame rules as to essential qualifications, mode of recruitment, criteria for selection etc. it is well settled that the rules framed under article 309 of the constitution of india are of legislative character and under rule making power of the government and the said legislative power being not in question in any of these matters, the validity or otherwise of the said rule is beyond the scope of consideration in these writ petitions. similarly, it is well settled that equivalence or otherwise of different courses is not a matter for..........subsequently it was merged with the post of multipurpose health extension officer, but for that post diploma in health education was not prescribed. the government, thereafter, had considered the matter and separated the post of health educator from the post of multipurpose health extension officer and given the same scale of pay as that of multipurpose health extension officer. the feeder category for the post of health educator shall be multipurpose health supervisor (male & female) with diploma in health education and three years of regular service in the category of multipurpose health supervisor. in the event of no such candidate being available, promotion has to be made from the category of multipurpose health assistant (male & female) directly who have diploma in health.....
Judgment:
ORDER

Vilas V. Afzulpurkar, J.

1. In these writ petitions the dispute revolves around the eligibility of the rival parties to the post of Health Educator. There is also a controversy as to whether the Diploma in Health Education, which is one of the requirements of eligibility, is a post Graduate Diploma or an undergraduate Diploma and whether such Diploma by any University or Institution is sufficient for claiming the eligibility.

2. The back ground facts relating to all these three writ petitions are as follows,

The post of Health Educator was incorporated in Andhra Pradesh Public Health Subordinate Service under G.O. Ms. No. 72, dated 20.1.1989 and subsequently it was merged with the post of Multipurpose Health Extension Officer, but for that post Diploma in Health Education was not prescribed. The Government, thereafter, had considered the matter and separated the post of Health Educator from the post of Multipurpose Health Extension Officer and given the same scale of pay as that of Multipurpose Health Extension Officer. The feeder category for the post of Health Educator shall be Multipurpose Health Supervisor (Male & Female) with Diploma in Health Education and three years of regular service in the category of Multipurpose Health Supervisor. In the event of no such candidate being available, promotion has to be made from the category of Multipurpose Health Assistant (Male & Female) directly who have Diploma in Health Education with minimum service of five years. Later the Andhra Pradesh Public Service Commission was consulted in the matter and a notification was issued under G.O.Ms. No. 273, Health, dated 24.4.1989. The Government, thereafter, considered the matter and made certain amendments to Special Rules in Andhra Pradesh Public Health Subordinate Service (hereinafter referred to as 'the Rules') by G.O.Ms. No. 281, Health, Medical and Family Welfare (J2) Department, dated 21.7.1998. Under the amended Rule 3(1)(A) promotion to the post of Health Educator shall be made from among the Multipurpose Health Supervisors (Male & Female) with Graduation and Diploma in Health Education and must have put in three years of regular service in the category of Multipurpose Health Supervisor. The Rules were further amended by a notification under GO.Ms. No. 482, Health, Medical & Family Welfare (J.1), dated 9.9.2005. In Rule 4 of the Rules in the table, in Serial No. 1(A) 'Health Educator' in column (3) after item (iii) the following words were added namely,

(iv) Those who have obtained post Graduate Diploma in Health Education from the following institutions are only eligible for the post of Health Educator:

(a) Central Health Education Bureau, New Delhi.

(b) Gandhigram Institute of Rural Health and Family Welfare Trust, Tamilnadu.

(c) All India Institute of Hygience and Public Health, Calcutta.

(d) Family Welfare Training and Research Centre, Mumbai.

3. WP No. 24344 of 2003:

This writ petition is directed against the order of Andhra Pradesh Administrative Tribunal, Hyderabad (for short 'the Tribunal) in O.A. No. 3579 of 2000, dated 10.4.2003. The applicants in the said OA sought a declaration that the action of the Regional Director, Medical and Health, Cuddapah in not considering their cases for promotion to the post of Health Educator vide proceedings RC. No. 4332/32/99, dated 22.7.1999 is illegal and that the respondents therein may be directed to give promotion to the applicants forthwith as Health Educators. The applicants had alleged in the said OA that they were appointed as Multipurpose Health Assistants and their services were regularised in that category. They also alleged that they had obtained Diploma in Nutrition and Health Education from Indira Gandhi National Open University (IGNOU), New Delhi and therefore, in terms of G.O.Ms. No. 281, dated 21.7.1998 they are eligible to be considered for promotion to the post of Health Educator. The said OA was initially allowed by the Tribunal on 12.7.2000 with a direction to 3rd respondent therein to consider the cases of applicants for promotion to the post of Health Educator. However, the other qualified persons who were not parties to the said OA, challenged the said order of the Tribunal in WP Nos. 2441 and 3137 of 2001 before this Court. By order of this Court, dated 13.8.2001, the order in O.A. was set aside and the OA was remanded back to the Tribunal for fresh disposal, after giving notice and opportunity of hearing to all the parties. Thereafter the petitioners who filed the above writ petitions, were impleaded as respondents 4 and 5 in the OA and the said OA was heard afresh. During the hearing of the said OA, the Tribunal had noticed that the post Graduate Diploma in Health Education awarded by four institutes viz., (1) Gandhigram Institute of Rural Health and Family Welfare Trust, (2) Chennai, Central Health Education Bureau, New Delhi, (3) Family Welfare Training and Research Centre, Mumbai and (4) All India Institute of Hygiene and Public Health, Calcutta, is alone recognized by the Government. The Government also placed before the Tribunal the comparative chart relating to the courses offered by the aforesaid four institutes and the one secured by the applicants in the said OA viz., Diploma in Nutrition and Health Education awarded by IGNOU. The Tribunal also noted that the Government had issued a Memo No. 6525/J2/2001-1, dated 31.10.2001 stating that the persons who have Diploma in Health Education awarded by any institute, other than the aforesaid four institutes, referred to above, cannot be treated to be having required qualification. The Tribunal, therefore, held that the applicants are not eligible to be considered for promotion to the post of Health Educator and dismissed the OA. Questioning the said order, the present writ petition is filed by the applicants. During the pendency of this writ petition, the order of the Tribunal was suspended.

4. WP Nos. 9721 and 14715 of 2009:

These two writ petitions are directed against the order of Tribunal in OA No. 579 of 2007, dated 23.3.2009. The applicants in the said OA are similarly situated as that of the petitioners in WP No. 24344 of 2003, referred to above. All the applicants in OA No. 579 of 2007 are Multipurpose Health Supervisors (Male) and they had questioned the Government Memo No. 10438/J1/2005-4, dated 25.5.2006 and consequential proceedings Re. No. 4039/A1/RDH/06, dated 18.11.2006. By the Memo No. 10438/J1/2005-4, dated 25.5.2006, the Government had considered the question as to whether the Diploma in Nutrition and Health Education awarded by IGNOU, New Delhi is requisite qualification for the post of Health Educator and while rejecting the equivalence of the said Diploma, the Government stated as follows,

3. Government after taking into consideration of the report of Committee constituted by the Director of Health, Hyderabad and opinion tendered by A.P. State Council of Higher Education and also Commissioner Family Welfare, have observed that the P.G. Diploma in Health Education Course is a full time course for a period of one year and to undergo the said training, one must have Graduation/Degree in any recognized University. The in-service candidates who have Degree qualification and put in a service of at least 2 yeas are eligible to undergo the said training either at their own cost or by applying leave to which they are eligible with the permission of the Department by the competent authority according to the necessity. Whereas DNHE course awarded by the IGNOU, New Delhi is a correspondence one which is one year course. The eligibility for the course is 10th class 4- 2 years intermediate course. The subject is mainly on Nutrition besides Health Education. Further it is a undergraduate course. Hence the DNHE Course cannot be considered as equivalent to DHE course, as such the persons who obtained DNHE course from IGNOU, New Delhi are not eligible for considering their promotion on par with the persons who obtained DHE course.

5. Questioning the same, the applicants had contended before the Tribunal that the aforesaid memo came to be passed by the Government in terms of the Tribunal's earlier order in OA No. 2104 of 2003 whereby the Government was directed to consider the issue as to whether the qualification of the applicants would satisfy the qualification which is requisite for considering their promotion. The applicants had also contended before the Tribunal that all of them are Graduates and they had acquired Diplomas from IGNOU, New Delhi and therefore the requirement under the Rules i.e., Graduation with Diploma in Health Education was satisfied. They had also alleged that they had requisite qualification and experience of working and as such they are entitled to be promoted. Under the impugned order the Tribunal proceeded to hold that what is required under the Rules is only Graduation in Diploma and not post Graduation Diploma and held that the degrees and courses offered by IGNOU being on par with the courses offered by other universities, the non-consideration of applicants was not justified and consequently allowed the OA. Questioning the said order, the official respondents in the OA, filed WP No. 14715 of 2009. Similarly the persons who were not parties to the OA have also filed WP No. 9721 of 2009 challenging the Tribunal's order, by securing leave from this Court on the ground that they were affected by the order of Tribunal.

6. The applicants in OA No. 579 of 2007 who are respondents in these two writ petitions, have filed counter-affidavits and also a vacate stay petition vide WVMP No. 2591 of 2009 in WP No. 14715 of 2009. Similarly situated Multipurpose Health Assistants, as that of applicants in OA No. 579 of 2007, have filed applications vide WPMP No. 20458 of 2009 and WVMP No. 2559 of 2009 to implead them as contesting respondents and vacate the interim order respectively in WP No. 9721 of 2009. Since all these writ petitions were heard together, they are being disposed of by this common order.

7. We have heard Sri M. Ratna Reddy, learned Counsel appearing for the contesting respondents in WP No. 24344 of 2003, learned Government Pleader appearing for the petitioners in WP No. 14715 of 2009, Sri J.R. Manohar Rao, learned Counsel appearing for the petitioners in WP No. 9721 of 2009, Sri P. Amarender, learned Counsel appearing for the contesting respondents in both the writ petitions and Sri Gandrakota Gopal Rao, learned Counsel appearing for impleaded respondents in WP No. 9721 of 2009.

8. The contention of the learned Counsel for the petitioners in WP No. 24344 of 2003 as well as for contesting respondents in WP No. 9721 and 14715 of 2009 is that IGNOU is established by the Central Act and it is not in dispute that the degrees and diplomas awarded by IGNOU are on par with the degrees and diplomas awarded by any other institutes in India. They also contended that G.O.Ms. No. 281, dated 21.7.1998 does not prescribe any particular institute as essential institute and it also does not say that it should be a post Graduate Diploma. It is also contended by them that in any case while initial Rules were prescribed in G.O.Ms. No. 281, dated 21.7.1998, the clarification was later issued in G.O.Ms. No. 482, dated 9.9.2005 and therefore, the vacancies in between the two GOs have necessarily to be governed by the rule position without taking into consideration the clarification issued under G.O.Ms. No. 482, dated 9.9.2005. The contention of the learned Counsel is that what all required by G.O.Ms. No. 281, dated 21.7.1998 is a Graduation with Diploma in Health Education and therefore, there was no reason to exclude the applicants in OA Nos. 3579 of 2000 and 579 of 2007 from consideration for promotion.

9. Per contra, the learned Government Pleader appearing for official respondents and Sri J.R. Manohar Rao, learned Counsel appearing for some of the writ petitioners, have contended that the prescription of educational qualification has to be considered in accordance with the intention of the Government in specifying the Rule, as clarified in G.O.Ms. No. 482, dated 9.9.2005 which prescribes that only those who have obtained post Diploma in Health Education from four institutes, referred to above, would be considered as fulfilling the required qualification. They, therefore, contended that the post Graduate Diploma in Health Education will alone qualify a person for getting eligibility for the post of Health Educator and the said Diploma is being offered by only the four institutes, referred to above and as such the Diplomas obtained by the applicants in OAs. could not have been considered for promotion.

10. We have considered the aforesaid contentions of the learned Counsel for the parties. G.O.Ms. No. 281, dated .21.7.1998 stipulates that for promotion to the post of Health Educator, one must have the qualification of Graduation with Diploma in Health Education and put in three years of regular service in the category of Multipurpose Health Supervisor. By the clarification issued by the Government in G.O.Ms. No. 482, dated 9.9.2005, it specifically states that those who have obtained post Graduate Diploma in Health Education from four institutes i.e., Central Health Education Bureau, New Delhi, Gandhigram Institute of Rural Health and Family Welfare Trust, Tamilnadu, All India Institute of Hygience and Public Health, Calcutta and Family Welfare Training and Research Centre, Mumbai, are only eligible for the post of Health Educator. It would be noticed that the word 'only', on which emphasis is supplied, is significant and makes it clear that the Government, as a rule making authority under Article 309 of the Constitution of India, has specified that the Diplomas awarded by the said four institutes only are to be considered for eligibility. It is well settled that rule making authority is entitled to frame rules as to essential qualifications, mode of recruitment, criteria for selection etc. In this connection, reliance is placed on a judgment of the Supreme Court reported in Official Liquidator v. Dayanand and Ors. : 2008 (13) Scale 558 : 2009 (3) SCJ 661 and in para-59 the Supreme Court held as follows,

59. We have carefully analyzed the judgment of the two-Judges Bench and are of the considered view that the above reproduced observations were not called for. The only issue which fell for consideration by two-Judges Bench was whether the daily wage employees of the society, the establishment of which was taken over by the Electricity Board along with the employees, were entitled to be regularized in terms of the policy decision taken by the Board and whether the High Court committed an error by invoking Article 14 of the Constitution for granting relief to the writ petitioners. The question whether the Electricity Board could frame such a policy was neither raised nor considered by the High Court and this Court. The High Court simply adverted to the facts of the case and held that once the daily wage employees of the society became employees of the Electricity Board, they could not be discriminated in the matter of implementation of the policy of regularization. Therefore, the two-Judges Bench had no occasion to make any adverse comment on the binding character of the Constitution Bench judgment in Secretary, State of Karnataka v. Uma Devi : AIR 2006 SC 1806.

11. Admittedly none of the contesting respondents in these two writ petitions has secured the said Diploma. Only the petitioners in WP No. 9721 of 2009 have secured the Diploma awarded by one of the above four institutes. It is also to be noticed that even under G.O.Ms. No. 281, dated 21.7.1998 the requirement is Graduation with Diploma in Health Education. The question, therefore, is whether the Diploma necessarily has to be a post Graduate Diploma.

12. In OA No. 579 of 2007 the Tribunal has proceeded to allow the said OA on the ground that the Diploma need not be a post Graduate Diploma and a Graduate with Diploma in Health Education is sufficient to claim the eligibility. It is evident from G.O.Ms. No. 281, dated 21.7.1998, as clarified by G.O.Ms. No. 482, dated 9.9.2005 that in terms of the powers of the Government under Article 309 of the Constitution of India the specific eligibility and qualification have been prescribed. The word 'only' used in G.O.Ms. No. 482, dated 9.9.2005 excludes the institutes other than the aforesaid four institutes. It is well settled that the Rules framed under Article 309 of the Constitution of India are of legislative character and under rule making power of the Government and the said legislative power being not in question in any of these matters, the validity or otherwise of the said Rule is beyond the scope of consideration in these writ petitions. Similarly, it is well settled that equivalence or otherwise of different courses is not a matter for adjudication by the Courts, as the experts in the field of education alone are competent to consider and hold that a particular course is equivalent to a particular other course. Reliance is placed on a judgment of the Supreme Court in Basic Education Board v. Upendra Rai and Ors. : 2008 (2) Scale 407 and it held as follows,

14. Learned Counsel also submitted that the NCTE Act overrides the UP Basic Education (Teachers) Service Rules 1981 in view of Article 254 of the Constitution read with Entry 25 of List III of the Seventh Schedule to the Constitution. Learned Counsel submitted that if a person has the qualification mentioned in Section 2(m) of the NCTE Act he has the necessary qualification for being appointed as an Assistant Master or a Teacher in any educational institution in India. We regret, we cannot agree.

15. A perusal of the NCTE Act shows that this Act was made to regulate the teachers training system and the teachers training institutes in the country. It may be mentioned that there are two types of educational institutions - (1) ordinary educational institutions like primary schools, high schools, intermediate colleges and universities and (2) teachers' training institutes. The NCTE Act only deals with the second category of institutions vi7. teachers' training institutes. It has nothing to do with the ordinary educational institutions referred to above. Hence, the qualification for appointment as teacher in the ordinary educational institutions like the primary school, cannot be prescribed under the NCTE Act, and the essential qualifications are prescribed by the local Acts and Rules in each State. In U.P. the essential qualification for appointment as a primary school teacher in a Junior Basic School is prescribed by Rule 8 of the U.P. Basic Education (Teachers) Service Rules, 1981 which have been framed under the U.P. Basic Education Act, 1972. A person who does not have the qualification mentioned in Rule 8 of the aforesaid Rules cannot validly be appointed as an Assistant Master or Assistant Mistress in a Junior Basic School.

13. The impugned memo of the Government dated 25.5.2006, extracted above, shows that the Government has taken into consideration the report of the committee constituted by the Director of Health, Hyderabad as well as opinion tendered by A.P. State Council of Higher Education and also Commissioner of Family Welfare. The Government has, therefore, made an informed decision that the Diploma course offered by four institutes is a full time course for a period of one year and eligibility for taking up the said post-Graduate Diploma is obtaining a graduate qualification from any recognized university, whereas the Diploma in Nutrition and Health Education awarded by IGNOU is a correspondence course which is of one year duration and the eligibility to take up the said course is 10+2 years i.e., intermediate qualification. It is also to be noticed that the said Diploma awarded by IGNOU is mainly on Nutrition besides Health Education and the same being undergraduate course was not considered equivalent to Diploma in Health Education awarded by the aforesaid four institutes. It is not, therefore, for the Court or the Tribunal to sit in judgment over the equivalence of the two courses when the Government has issued the said GO based on the consideration of the experts' report.

14. It is also to be noticed that while the course offered by IGNOU is undergraduate course, the course offered by four institutes is a post Graduate course. The requirement of possessing graduation with Diploma, therefore, has to be necessarily read as possessing post Graduate Diploma and not an undergraduate Diploma as offered by IGNOU. As mentioned above, in none of the OAs before the Tribunal nor in these writ petitions the validity of G.O.Ms. No. 482, dated 9.9.2005 or G.O.Ms. No. 281, dated 21.7.1998 is questioned and only the consequential proceedings issued based thereon are questioned. The legislative intention of the rule making authority i.e., the Government is clear from the fact that under the Rules it prescribes 'Graduation with Diploma in Health Education', otherwise it could have merely prescribed 'Diploma in Health Education' which could be either a post Graduate or a undergraduate Diploma. This is further reaffirmed by the clarificatory G.O.Ms. No. 482, dated 9.9.2005 which makes it clear that one must possess post graduate Diploma in Health Education only from one of the four institutes and as the said institutes offered only post graduate Diploma, the contention that the undergraduate Diploma awarded by the IGNOU is equivalent qualification, cannot be accepted. In OA No. 3579 of 2000 which is the subject matter of WP No. 24344 of 2003 the Tribunal has rightly considered the said aspect and dismissed the OA. Since this writ petition is pending before this Court and the Tribunal's order was suspended pending writ petition, the Tribunal could not have allowed a fresh OA No. 579 of 2007 by taking a contrary view without reference to the findings in OA No. 3579 of 2000.

15. Sri G. Gopal Rao, learned Counsel appearing for impleaded respondents has made several other contentions, such as the degree awarded by IGNOU being under the Central Act and the same having been recognised on par with all other degrees or Diplomas awarded by other institutes in India, and relying upon the legislative competence under the Union List, the learned Counsel contended that the State Government had no power to specify a particular qualification which would be in conflict with the qualification awarded by the University established under the Central Act etc. However, in the absence of any challenge to the legislative competence of the State and constitutional validity of G.O.Ms. No. 482, dated 9.9.2005 or G.O.Ms. No. 281, dated 21.7.1998 being not in question in these writ petitions, the said contention cannot be accepted in this batch of writ petitions. It is also argued that some OAs. were filed before the Tribunal challenging the validity of the said Rules and they are pending before the Tribunal. Therefore, the said argument is not germane for consideration herein.

16. In this view of the matter, the order of the Tribunal in OA No. 579 of 2007 cannot be sustained and is liable to be set aside. However, we agree with the conclusion of the Tribunal in OA No. 3579 of 2000.

17. Accordingly, WP No. 24344 of 2003 is dismissed and WP Nos. 14715 and 9721 of 2009 are allowed. However, there shall be no order as to costs.


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