S.A. Shah, J.
1. The petitioners challenged the action of the Government in not granting them either the grade of trained teachers or five advance increments recommended by Desai Pay Commission. The main challenge of the petitioners is that the action of the Government is violative of Articles 14 and 16 of the Constitution in as much as they have been discriminately treated with Primary teachers holding Primary Teaching Certificate, though the petitioners are better qualified and competent to teach even in P.T.C. colleges.
2. Petitioners Nos. 1, 2, 3 and 5 are primary school teachers. All of them are holding the qualifications of Bachelor of Arts (B.A.) and Bachelor of Education (B.Ed.). Petitioners No. 1 and 2 had passed B.Ed., examination before January, 1976 and petitioners No. 3 and 5 had passed B.Ed., examination after January, 1976, to be precise in March, 1976. Petitioner No. 4 is the Gujarat Rajya Prathamik Shikshak Parishad which is a representative body of the Primary School Teachers having membership of more than 2,000 teachers. According to the petitioners there are about 700 primary teachers who have passed B.Ed, examination prior to January, 1976 and there are about 125 to 150 primary teachers who have passed B.Ed, examination after January, 1976.
3. The qualification for trained primary teachers as prescribed by the Recruitment Rules of 1976 is Primary Teaching Certificate Examination (P.T.C.). The petitioners are not only graduates in Arts, Science or Commerce, as the case may be, but they have passed B.Ed, examination which is considered very high in teaching profession. They are qualified not only to teach in Secondary and Higher Secondary schools but to teach in P.T.C. colleges also. The petitioners, therefore, say that those who can teach and train P.T.C. students are excluded from being qualified to be regarded as primary teachers. It is a well-known principle of law that when one possesses a higher qualification he cannot be denied the admission where a lower qualification is necessary. The petitioners say that if a teacher with B.Ed, qualification is capable of training and teaching P.T.C. students, by no stretch of imagination it can be said that he is not capable of teaching primary students where Primary Teaching Certificate Examination is considered to be adequate qualification.
4. The second limb of argument of the petitioners is that the Government has exempted teachers who have passed B.Ed, examination prior to January, 1976, whereas those who have passed B.Ed, examination after January, 1976 are not considered qualified for the higher grade of Rs. 290-560, meant for qualified teacher. The petitioners say that the fixation of the date of January 1976 has no rational basis and is arbitrary and creates patent discrimination between teachers who have passed the B.Ed, examination prior to January 1976 and subsequent thereto and, therefore, the said action of the Government is arbitrary and denies equal opportunity to the petitioners.
5. One Mr. M.G. Shah, Section Officer, Education Department, has filed affidavit-in-reply on behalf of the respondent-State without producing any record. The affidavit is as vague as it can be. When there is a challenge of discrimination which is patent on the face of it, it is incumbent on the State Government to give necessary documents and facts which can justify the discrimination on both the points, viz., why higher education is not considered desirable for teaching primary school students and what is the rationale behind fixing 1-1-1976 and 1-1-1977 as the date for the aforesaid purpose. However, para 4 of this affidavit-in-reply being relevant is reproduced below:
4. With reference to para 4 of the petition, I say that the Government has resolved to give exemption to those Primary Teachers who have passed B.Ed. Examination prior to January, 1976 from passing Primary Teaching Certificate Examination, but thereafter Government has revised its decision and has decided, by its order dated 17-1-1978, to give exemption from going for the training of Primary Teaching Certificate only to those trained graduate teachers who were in service before the date 1-1-1977. and therefore, now, the trained graduate teachers who were in service before 1-1-1977 only are to be treated as trained Primary Teachers.
It is not very clear from the above averment as to which decision has been revised by the order dated 17-1-1978, but it is clear from the affidavit that those who were in service prior to 1-1-1977 were exempted from undergoing the training of Primary Teaching Certificate and, therefore, trained graduate teachers who were in service before 1-1-1977 only are to be treated as trained primary teachers. It is also to be noted that trained graduate teachers means-graduate teachers with B.Ed, qualification and not trained as primary teachers by obtaining Primary Teaching Certificate. I think if this is the position as being averred by the deponent, the petitioners cannot have any grievance because all the petitioners were in service prior to 1-1-1977 and are trained graduates i.e. B.A. with B.Ed., and therefore, they are treated as trained primary teachers and in consequence thereof they are entitled to higher grade of qualified teachers.
6. Mr. M.M. Jadeja for the solicitors who happens to be present in the Court now states that those teachers who were in service prior to 1-1-1977 and holding B.Ed, degree are not required to obtain Primary Teaching Certificate.
7. In my opinion there is much substance in the argument of Mr. Vakharia, learned Counsel for the petitioners. It is not disputed that the graduates who have obtained B.Ed degree are recognised as teachers for teaching Primary Teaching Certificate trainees. Therefore, a person who is qualified to teach Primary Teaching Certificate trainees cannot be said to be not qualified for teaching primary school students. If the petitioners are possessing higher qualification, on that ground they cannot be denied lower posts of trained primary teachers. In any view of the matter when the Government itself has accepted that those teachers who have passed B.Ed, examination prior to January 1976 are exempted from passing Primary Teaching Certificate examination, by the said order the Government has recognised that qualification of B.Ed, was higher than that of Primary Teaching Certificate and, therefore, B.Ed, teachers should not be compelled to undergo P.T.C. training which will be derogatory to such teachers. Consequently, when the Government itself has agreed that those who were in service prior to 1-1-1977 and are trained graduate teachers are not required to undergo P.T.C. training the grievance of the petitioners may not survive.
8. So far as the second argument of Mr. Vakharia, learned Counsel for the petitioners, that there is no rationale in fixing the date of 1-1-1977 is concerned, it has some substance. If a teacher who has passed the B.Ed, examination prior to January 1976 is considered equivalent or more qualified than a P.T.C. trained teacher, by no stretch of imagination it can be said that the teachers who have passed the said examination after January, 1976 cannot be considered equivalent to those teachers who have passed the said examination earlier. There is no rationale behind making such classification nor there is any nexus to the object to be achieved, namely, efficiency in teaching. No cogent reasons have been given for fixing this date.
9. In the case of D.R. Nim v. Union of India : (1968)ILLJ264SC , while discussing the order of the Government of India dated 25-8-1955 by which the Government of India decided that the State Civil Service Officers who were officiating prior to 19th May, 1951, but have been appointed to the Indian Administrative Service after that date should, for purposes of fixation of seniority, be allowed the benefit of their continuous officiation in senior posts with effect from the 19th May, 1951 and not from actual prior date, the Supreme Court, in para 6 of its judgment, observed as under:
The above statement of the case of the Government further shows that the date, May 19, 1951, was an artificial and arbitrary date having nothing to do with the application of the first and the second proviso to Rule 3(3). It appears to us that under the second proviso to Rule 3(3) the period of officiation of particular officer has to be considered and approved or disapproved by the Central Government in consultation with the Commission considering all the relevant facts. The Central Government cannot pick out a date from a hat - and that is what it seems to have done in this case - and say that a period prior to that date would not be deemed to be approved by the Central Government within the second proviso.
The Supreme Court, having found that this fixation of artificial date was arbitrary, quashed the impugned order dated 25th August, 1955 by which the said date was fixed.
9.1. In the instant case also the fixation of date, January 1976, appears to be totally arbitrary and has no nexus with the object to be achieved. If a graduate with B.Ed, degree is considered equivalent to, if not more than, a primary teacher holding Primary Teaching Certificate, prior to 1976, by no stretch of imagination it can be said that a teacher who passed B.Ed. degree subsequent to January, 1976 cannot be said to be qualified for teaching primary school students. No doubt, all these questions are academic in character. When the Government itself has in clear terms stated in its affidavit that those who were recruited prior to 1-1-1977 and are holding B.Ed, degree will not be required to pass Primary Teaching Certificate Examination, the grievance of the petitioners does not survive. All the graduate teachers who have acquired B.Ed, qualification and who were in service on 1-1-1977 are exempted from passing Primary Teaching Certificate Examination, as per the affidavit of the respondents. Since I have found that all the petitioners will be entitled to the grade of trained teachers, they are not required to pass Primary Teaching Certificate Examination as per para 4 of the affidavit and even otherwise also it is not necessary to consider whether the recommendations made by the Desai Pay Commission are binding to the Government or not. I, therefore, do not deal with the contention of Mr. Vakharia on this point.
10. In the result the petitioners are entitled to higher grade of qualified teachers i.e. Rs. 290-560 since they were in service on 1-1-1977 as Primary Teachers in the respective primary schools. The respondents are directed to release the said grade to the petitioners as and when they acquired B.Ed, qualification. Rule is made absolute with no order as to costs. Writ to be issued forthwith.