JUDGMENT Hon’ble Arun Tandon, J.—Heard Sri S.N. Shukla, Advocate on behalf of the petitioner, Sri A.N. Singh, Advocate, Sri A.K. Singh, Advocate, A.N. Tripathi, R.C. Dwivedi, Advocate, R.P. Mishra, Advocate, V.C. Dixit, Advocate and the Standing Counsel on behalf of the respondents. 2. These two writ petitions have been filed by Chhangur Yadav qua the same post of the Headmaster of the institution. The two petitions have been clubbed and are being decided together. 3. By means of the first writ petition he has challenged the order dated 18.7.1991, whereby the Assistant Director (Basic) had cancelled the appointment of Chhangur Yadav as Headmaster of Kisan Laghu Madhyamik Vidyalaya, Mathauli Bazar, District Deoria (now district-Kushinagar) (hereinafter referred to as institution), which is a duly recognized Junior High School under the U.P. Basic Education Act. 4. While the first writ petition was pending it appears that fresh selection took place for the post of Headmaster of the institution and one Ram Prit Yadav was selected. His selection was approved by the Basic Shiksha Adhikari as Headmaster of the institution under order dated 17.3.1992. It is against this order that Chhangur Yadav has filed the second Writ Petition No. 17192 of 1992. 5. An interim order dated 13.5.1992 was granted in the second writ petition to the effect that the petitioner shall be entitled to get salary of the post of Headmaster admissible under the rules, however, the order will not effect the rights of respondent No. 3 namely Ram Prit Yadav to draw salary as a teacher of the institution. The interim order in the said writ petition is stated to have continued till date. 6. The controversy in both these writ petitions pertains to the appointment and continuance of Chhangur Yadav/Ram Prit Yadav as Headmaster of the same institution. For the purpose it would be relevant to narrate the facts in brief. 7. The Headmaster working in the institution namely Paras Singh is stated to have resigned in the year 1976. In the resultant vacancy one Ram Kishun, who was working as Assistant Teacher in the institution, was appointed as temporary Headmaster on 1.7.1976. Subsequently in July, 1977 he was offered appointment as permanent Headmaster. At the relevant point of time no statutory rules are stated to be applicable in the matter of appointment of Headmaster of a recognized junior basic school. Subsequently in July, 1977 he was offered appointment as permanent Headmaster. At the relevant point of time no statutory rules are stated to be applicable in the matter of appointment of Headmaster of a recognized junior basic school. The rules regulating the appointment on the post of Headmaster were notified only in February, 1978; namely Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as ‘1978 Rules’). 8. However, the issue qua appointment of Ram Kishun as Headmaster may not detain the Court for long, inasmuch as it is admitted to the parties that on 17th February, 1983 an order was passed by the Basic Shiksha Adhikari, wherein the name of the teachers working in the institution was approved and in the said order it was specifically mentioned that the vacancy on the post of Headmaster be advertised and appointment be made afresh in accordance with the statutory rules. The order dated 17.2.1983 has not been subjected to challenge by Chhangur Yadav or by the Committee of Management or by Ram Kishun. 9. Ram Kishun Singh is stated to have made a representation before the authority against the said order. However, proceedings for selection in terms of the order dated 17.2.1983 commenced and Chhangur Yadav is stated to have been selected for the post of Headmaster again. His appointment as such was approved by the District Basic Education Officer on 29.4.1983. The approval granted to the appointment of Chhangur Yadav was subjected to challenge by Ram Kishun Singh by means of Writ Petition No. 4115 of 1990. The prayer made in the writ petition was for quashing of the approval order and directing the authorities to consider and decide his representation as well as for staying the operation of the order dated 30.9.1989, whereby the Basic Shiksha Adhikari directed that Chhangur Yadav should be given charge of Headmaster and information in that regard be forwarded to the office immediately. The writ petition was dismissed by the Court after observing that the same is highly belated. However, it was provided that the representation made by Ram Kishun Singh may be considered by the authority concerned. 10. The writ petition was dismissed by the Court after observing that the same is highly belated. However, it was provided that the representation made by Ram Kishun Singh may be considered by the authority concerned. 10. In compliance to the aforesaid order of the writ Court the Additional Director (Basic) under the order dated 18.7.1991, impugned in the first writ petition, has held that Ram Kishun Singh was the Headmaster of the institution and since his services were not terminated in accordance with law or with the approval of the Basic Shiksha Adhikari, there was no vacancy which could be advertised, against which Chhangur Yadav could be appointed. Therefore, it has been held that the appointment and approval granted in favour of Chhangur Yadav was illegal. 11. Chhangur Yadav challenged the aforesaid order by means of Writ Petition No. 21706 of 1991. 12. In order to keep the record straight it may be recorded that Ram Kishun Singh, even after being held entitled to function as Headmaster of the institution under the order dated 18.7.1991, functioned as Headmaster for a short duration only and is stated to have resigned on 17.3.1992. 13. Ram Prit Yadav is stated to have been appointed in the institution as Headmaster in the background that Ram Kishun Singh had resigned from the institution on 17.3.1992. Appointment of Ram Prit Yadav was approved by the Basic Shiksha Adhikari on 17.3.1992. The approval order dated 17.3.1992 has been challenged by means of Writ Petition No. 17192 of 1992 by Chhangur Yadav. 14. On behalf of the petitioner it is contended that the order dated 17.2.1983 was not subject matter of challenge in Writ Petition No. 4115 of 1990, filed by Ram Kishun Yadav nor the said order was ever challenged by the Committee of Management. The order dated 17.2.1983 is in two parts. First part refuses to accept Chhangur Yadav or Ram Kishun Singh as Headmaster of the institution and second part directs that the appointment on the post of Headmaster be made by advertising the vacancy afresh in accordance with 1978 Rules. 15. In Writ Petition No. 4115 of 1990 there was no challenge to the order dated 17.2.1983. First part refuses to accept Chhangur Yadav or Ram Kishun Singh as Headmaster of the institution and second part directs that the appointment on the post of Headmaster be made by advertising the vacancy afresh in accordance with 1978 Rules. 15. In Writ Petition No. 4115 of 1990 there was no challenge to the order dated 17.2.1983. This Court is of the firm opinion that none of the parties can now be permitted to question the order of the Basic Shiksha Adhikari dated 17.2.1983 for the reasons (a) Chhangur Yadav did not challenge the order dated 17.2.1983 and (b) the Committee of Management did not challenge the order before any forum and (c) Ram Kishun is stated to have made a representation before the authority but in Writ Petition No. 4115/1990 he did not question the order of the Basic Shiksha Adhikari dated 17.2.1983 despite being aware of the same. 16. There is another reason for non-suiting Ram Kishun Yadav i.e. in his Writ Petition No. 4115 of 1990 in paragraph 2 it was claimed by Ram Kishun that he has been appointed as permanent Principal of the institution on 1.7.1976 (Counsel for Ram Kishun Singh has produced a copy of Writ Petition No. 4115 of 1990, filed by Ram Kishun, today before the Court. The same is kept on record) while the Committee of Management, which has supported Ram Kishun Yadav before the Assistant Director, had stated that Ram Kishun was appointed as temporary teacher in 1976-77 and thereafter he was made permanent Headmaster in July, 1977. 17. It is needless to emphasis that the claim of Ram Kishun, if any, stood closed with his resignation in the year 1992 and therefore nothing further is required to be added by this Court in respect of the claim of Sri Ram Kishun qua the post of Headmaster of the institution. 18. The Additional Director, while passing the impugned order dated 18.7.1991, has failed to take note of the fact that the order dated 17.2.1983 was not challenged by Sri Ram Kishun Singh in his writ petition nor it was otherwise questioned within reasonable time, for claiming that he was the recognized Headmaster of the institution. 18. The Additional Director, while passing the impugned order dated 18.7.1991, has failed to take note of the fact that the order dated 17.2.1983 was not challenged by Sri Ram Kishun Singh in his writ petition nor it was otherwise questioned within reasonable time, for claiming that he was the recognized Headmaster of the institution. He had only chosen to challenge the appointment of Sri Chhangur Yadav and that too after it was approved by the Basic Shiksha Adhikari and for the purpose he has taken seven years to approach the High Court. 19. In the totality of the circumstances on record this Court holds that the order dated 17.2.1983 is binding upon the parties to the litigation and they cannot be permitted to question the same. The post of Headmaster of the institution had therefore necessarily to be filled by direct recruitment afresh as per the order dated 17.2.1983. The order of the Additional Director dated 18.7.1991 has failed to take note of the aforesaid aspect of the matter and is, therefore, rendered illegal. 20. In view of the conclusion arrived at by this Court herein above, what logically follows is that the appointment of Ram Prit Yadav on 17.3.1992 as Headmaster, because of the resignation tendered by Sri Ram Kishun Singh, also looses all significance, inasmuch as under order of the Basic Shiksha Adhikari dated 17.2.1983 only appointment by direct recruitment could be made on the post of Headmaster of the institution in accordance with 1978 Rules. 21. However, it is necessary that the Court must examine as to whether the appointment of Sri Chhangur Yadav by direct recruitment in pursuance to the order of the Basic Shiksha Adhikari dated 17.2.1983, which was approved on 29.4.1983, was in accordance with law or not. The Additional Director under the order dated 18.7.1991 has non-suited Chhangur Yadav on the ground that Ram Kishun Singh had not been removed from the office of Headmaster of the institution and therefore there was no vacancy for appointment. No other aspect of the matter with regard to the procedure and essential qualification of Sri Chhangur Yadav has been examined. 22. The legality of the selection and satisfaction of the essential qualifications required by Sri Chhangur Yadav, before his appointment as Headmaster could be approved, had to be examined by the authorities concerned with reference to the statutory rules applicable. 23. 22. The legality of the selection and satisfaction of the essential qualifications required by Sri Chhangur Yadav, before his appointment as Headmaster could be approved, had to be examined by the authorities concerned with reference to the statutory rules applicable. 23. Normally this Court would have remanded the matter to the authorities for adjudicating ‘as to whether the selection of Sri Chhangur Yadav in the year 1983 was in accordance with law or not and in case the answer was in negative, the Court would have further directed to Basic Shiksha Adhikari to examine as to whether the appointment of Sri Ram Prit Yadav in the year 1992 was in accordance with law or not. 24. However such a course is not being adopted in view of the admitted fact that Chhangur Yadav and Ram Prit Yadav did not possesses the requisite minimum qualification for being appointed as Headmaster of a recognized junior high school with reference to the The Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) 1978 Rules. 25. It is admitted to the counsel for Chhangur Yadav as well as to the counsel for Ram Prit Yadav that both have teaching qualification of B. Ed. in their favour. They are neither JTC, HTC or BTC. 26. The issue, as to whether a degree of B. Ed. is equivalent to JTC, STC, BTC etc. has been examined by the Hon’ble Supreme Court in the case of Mohd. Sartaj and others v. State of U.P. and others, 2006(2) SCC 315 , wherein it has held that B. Ed. is not an equivalent qualification vis-a-vis the teachers training certificate, namely Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training etc. Therefore, a candidate with the degree of B. Ed. has been held to be disqualified to be appointed as teacher in Parishadiya Vidhayalaya where the teaching qualification prescribed are that of J.C.T. B.T.C. Etc. 27. The same principle would apply in the case of Headmaster to be appointed in a recognized Junior High School. The degree of B. Ed. cannot be held to be equivalent to BTC, JTC, HTC etc. as per the essential qualifications provided under Rule 4 of 1978 Rules. 28. 27. The same principle would apply in the case of Headmaster to be appointed in a recognized Junior High School. The degree of B. Ed. cannot be held to be equivalent to BTC, JTC, HTC etc. as per the essential qualifications provided under Rule 4 of 1978 Rules. 28. Consequently, this Court hold that neither the petitioner Chhangur Yadav nor Ram Prit Yadav were possessed of the prescribed minimum qualification for the post of Headmaster of a recognized Junior High School on the alleged date of their appointment. Any length of working under the interim order of this Court will not cure the defect of their being illegally appointed in absence of essential qualification prescribed at the time of induction in service. The Hon’ble Supreme Court has clarified that long length of service will not cure the illegality committed at the time of initial appointment. It would be relevant to reproduce Paragraph 19 of the judgment of the Hon’ble Supreme Court in the case of Shesh Mani Shukla v. District Inspector of Schools, Deoria and others, (2009) 15 SCC 436 , which reads as follows: “19. It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State. (See Food Corpn. Of India v. Ashis Kumar Ganguly) Sympathy or sentiments alone, it is well settled, cannot form the basis for issuing a writ of or in the nature of mandamus. (See State of M.P. v. Sanjay Kumar Pathak).” 29. Consequently, both the writ petitions are disposed of by providing that Sri Chhangur Yadav and Sri Ram Prit Yadav shall be permitted to function as Assistant Teacher in the institution. The vacancy on the post of Headmaster shall be filled afresh strictly in accordance with law. (See State of M.P. v. Sanjay Kumar Pathak).” 29. Consequently, both the writ petitions are disposed of by providing that Sri Chhangur Yadav and Sri Ram Prit Yadav shall be permitted to function as Assistant Teacher in the institution. The vacancy on the post of Headmaster shall be filled afresh strictly in accordance with law. The institution is stated to have been upgraded as High School and Intermediate, although it has not been taken on grant-in-aid list at the said level. 30. The petitioner would be entitled to continue as Assistant Teacher and would further be entitled to salary strictly in accordance with the rules applicable as per rules applicable on the Junior High School being upgraded as High School. 31. The matter with regard to payment of salary to Chhangur Yadav for the intervening period may be examined by the Basic Shiksha Adhikari after affording opportunity of hearing to the petitioner and the Committee of Management. In case the Basic Shiksha Adhikari finds that Sri Chhangur Yadav was illegally restrained by the management from working in the institution, he shall proceed to pass appropriate order for payment of salary to Sri Chhangur Yadav and money in that regard may be recovered from the management itself. —————