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2022 DIGILAW 1300 (ALL)

State of U. P. v. Ankita Saxena

2022-08-17

J.J.MUNIR, RAJESH BINDAL

body2022
ORDER : 1. Heard Mr. Ramanand Pandey, learned Additional Chief Standing Counsel appearing on behalf of the appellants and Mr. Vikrant Pandey, learned Advocate appearing on behalf of the respondent. 2. There is a delay of 95 days reported by the Stamp Reporter. Upon a perusal of the affidavit filed in support of the delay condonation application, we find that there is sufficient cause made out to condone the delay. The delay in filing the appeal is condoned. 3. The application is allowed. 4. This appeal has been preferred by the five respondents-the State respondents of Writ-A No. 10041 of 2017, questioning the judgment and order of the learned Single Judge dated 1st April, 2022, allowing the writ petition. 5. The writ petitioner is respondent No. 1 to this appeal. She will hereinafter be called as the writ petitioner. The Manager, Public Balika Junior High School, Rampur, District Rampur sought and was granted prior approval by the District Basic Education Officer, Rampur, the fourth appellant here, permitting the institution aforesaid to initiate the process to recruit, select and appoint a suitable person as the Headmistress of the institution. Permission for recruitment of two Assistant Teachers was also sought and granted. Based on the permission granted by the District Basic Education Officer, the Manager of the Public Balika Junior High School, Civil Lines, Rampur (for short ‘the institution’) issued an advertisement dated 21.01.2016, published in the Hindi Daily ‘Hindustan’ issue dated 22.01.2016 and also in the ‘Shah Times, Rampur’ issue dated 22nd January, 2016. The advertisement indicated personnel eligibility qualifications for the post of Headmistress as the candidate being a woman, who should have attained the age of 30 years as on 1st July, 2016. The minimum education and experience required for the eligibility was indicated to the effect that the candidate should be a trained graduate with a minimum of five years teaching experience in a recognized school. There was no mention in this advertisement about the candidate being required to possess a certificate of passing the Teachers Eligibility Test (for short ‘the TET’) as an essential qualification to maintain a valid candidature. The writ petitioner is admittedly a trained graduate with five years of teaching experience in a recognized school. The writ petitioner was called for interview for the post of Headmistress, held on 05.07.2016. The writ petitioner is admittedly a trained graduate with five years of teaching experience in a recognized school. The writ petitioner was called for interview for the post of Headmistress, held on 05.07.2016. It is pleaded in the writ petition that out of ten candidates, who participated in the interview, the writ petitioner secured the highest marks and was ranked at the first place. Acting on the result drawn up by the Selection Committee, a proposal dated 08.07.2016 to obtain approval for the petitioner’s appointment as the Headmistress of the institution, was forwarded to the District Basic Education Officer, Rampur, appellant no. 5, by the Manager of the institution. A copy of the proposal is on record as Annexure No. 8 to the writ petition. The District Basic Education Officer, Rampur, by means of his order dated 26.07.2016, declined the proposal to approve the writ petitioner’s appointment on the ground that she does not hold the certificate of TET (Junior High School Level), an essential educational qualification for the post. 6. It is the absence of the aforesaid qualification with the writ petitioner that has become the bone of contention between parties. The writ petitioner questioned the order dated 26.07.2016 passed by the District Basic Education Officer, Rampur, declining the Management’s proposal to appoint her as the Headmistress, by instituting the writ petition giving rise to this appeal. After exchange of affidavits, the learned Single Judge by means of the judgment and order impugned has allowed the writ petition and quashed the order dated 26.07.2016 passed by the District Basic Education Officer, Rampur. A mandamus has been issued to the District Basic Education Officer, to grant approval to the petitioner’s selection on the post of Headmistress of the institution within a period of four weeks and issue her the necessary letter of appointment. It has further been ordered by the learned Judge that the writ petitioner shall be paid arrears of salary from the date approval for her appointment was denied by the District Basic Education Officer i.e. 26.07.2016. The arrears have been directed to be paid within a period of two months, after the issue of her appointment letter. It has further been ordered by the learned Judge that the writ petitioner shall be paid arrears of salary from the date approval for her appointment was denied by the District Basic Education Officer i.e. 26.07.2016. The arrears have been directed to be paid within a period of two months, after the issue of her appointment letter. It has also been ordered that in case the arrears of salary are not paid to the writ petitioner within the time provided by the learned Judge, simple interest at the rate of 6% p.a. would also be payable to the writ petition till actual payment is made. 7. Aggrieved by the aforesaid judgment and order passed by the learned Single Judge, the State-respondents have appealed under Chapter VIII Rule 5 of the Rules of the Court. 8. Heard Mr. Ramanand Pandey, learned Additional Chief Standing Counsel appearing on behalf of the appellants and Mr. Vikrant Pandey, learned Advocate appearing on behalf of the writ petitioner. 9. It is argued by the learned Additional Chief Standing Counsel appearing for the State that the educational qualification of passing the TET, conducted by the Government of Uttar Pradesh or by the Government of India, is an essential qualification for appointment as an assistant teacher under Rule 4 of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (for short ‘the 1978 Rules’). It is submitted with much emphasis by Mr. Ramanand Pandey, that the minimum qualification for appointment on the post of Headmaster/Headmistress under Rule 4(2) of the 1978 Rules is a degree from a recognized university or an equivalent examination recognized as such, besides qualification of passing a Teachers Training Court, as specified in the Rule. In addition, the essential qualification also includes five years teaching experience in a recognized school. Carrying the submission further, it is urged on behalf of the State that the advertisement issued by the institution was not in accordance with the Government Orders, departmental instructions and the provisions of the 1978 Rules, as amended by the Sixth Amendment Rules, 2012. It is, therefore, argued on behalf of the appellants that in order to qualify for the post of a headmistress, the five years teaching experience postulated as an assistant teacher would mean experience earned as an assistant teacher, possessing the essential qualifications for the latter post. It is, therefore, argued on behalf of the appellants that in order to qualify for the post of a headmistress, the five years teaching experience postulated as an assistant teacher would mean experience earned as an assistant teacher, possessing the essential qualifications for the latter post. It is submitted that the writ petitioner not having passed the TET before she was appointed as an assistant teacher, her experience of five years teaching is a nullity. It would not qualify her for the post of Headmistress under Rule 4(2) of the 1978 Rules. 10. The submission of the learned Additional Chief Standing Counsel goes as far as that the qualification of passing the TET being essential for an assistant teacher, it is a fortiori essential for a headmistress, because an assistant teacher of five years experience would postulate the candidate possessing qualification of having passed the TET. It is argued that the learned Single Judge has gone wrong in holding that passing the TET is not one of the essential qualifications for the post of a headmistress, stipulated by Rule 4(2) of the 1978 Rules. 11. On the other hand, Mr. Vikrant Pandey, the learned Counsel appearing for the writ petitioner, supported the impugned order and says that the writ petitioner was appointed as an assistant teacher in accordance with the 1978 Rules on 01.07.2009 and functioned as such up to 30.11.2012 in Smt. Shanti Devi Junior High School, Bareilly and again earned two years teaching experience from 01.07.2013 to 03.12.2015 in Smt. Shanti Devi Children Academy, Bareilly. It is urged that the Sixth Amendment to the 1978 Rules were introduced w.e.f. 05.12.2012, whereas the writ petitioner was appointed on 01.07.2009, and thereafter, completed her experience as an assistant teacher in two spells, exceeding five years on the date she applied for the post of headmistress. 12. It is emphasized that when the writ petitioner was appointed as an assistant teacher on 01.07.2009, there was no requirement of passing the TET. It is for the said reason that she was permitted to continue as an assistant teacher even after the amendment of the 1978 Rules by the Sixth Amendment w.e.f. 05.12.2012. It is, therefore, the writ petitioner's case is that in her case, the requirement of passing the TET would not at all be attracted. It is for the said reason that she was permitted to continue as an assistant teacher even after the amendment of the 1978 Rules by the Sixth Amendment w.e.f. 05.12.2012. It is, therefore, the writ petitioner's case is that in her case, the requirement of passing the TET would not at all be attracted. The learned Single Judge has more or less accepted the writ petitioner's contention and allowed the writ petition in the terms indicate hereinabove. 13. Upon consideration of the submissions advanced by the learned Counsel for parties and perusal of the records, we are in agreement with the conclusions reached by the learned Single Judge. Rule 4 of the 1978 Rules are extracted below: “4. Minimum Qualifications: (1) The minimum qualifications for the post of Assistant Teacher of recognized school shall be a Graduation Degree from a University recognized by U.G.C. and a teachers training course recognized by the State Government or U.G.C. or the Board as follows: 1. Basic Teaching Certificate. 2. A regular B.Ed. degree from a duly recognized institution. 3. Certificate of Teaching. 4. Junior Teaching Certificate. 5. Hindustani Teaching Certificate. And Teacher eligibility test passed conducted by the Government of Uttar Pradesh or by the Government of India. (2) The minimum qualifications for the appointment to the post of head master of a recognized school shall be as follows: (a) A degree from a recognized University or an equivalent examination recognized as such. (b) A teacher's training course recognized by the State Government U.G.C. or Board as follows: 1. Basic Teaching Certificate. 2. A regular B.Ed degree from a duly recognized Institution. 3. Certificate of Teaching. 4. Junior Teaching Certificate. 5. Hindustani Teaching Certificate. (c) Five years teaching experience in a recognised schools.” 14. A reading of the Rule shows that it is nowhere prescribed as an essential qualification for a candidate to be appointed a headmaster/ headmistress that the person concerned must have passed the TET. There is no quarrel about the fact that the writ petitioner had earned her degree of Bachelor of Arts from Dr. Bhimrao Ambedkar University in the year 2003 and a degree of Bachelor of Education from the same University in the year 2007. She is, thus, a trained graduate within the meaning of Rule 4(2) of the 1978 Rules. 15. The issue is about the lack of her qualification relating to the TET. Bhimrao Ambedkar University in the year 2003 and a degree of Bachelor of Education from the same University in the year 2007. She is, thus, a trained graduate within the meaning of Rule 4(2) of the 1978 Rules. 15. The issue is about the lack of her qualification relating to the TET. There is clear averment in Paragraph No. 11 of the writ petition that the writ petitioner has teaching experience of five years from a recognised school i.e. Smt. Shanti Devi Junior High School, Bareilly, where she has taught from 01.07.2009 to 30.11.2012, and thereafter, in Smt. Shanti Devi Children Academy, Bareilly w.e.f. 01.07.2013 to 03.12.2015. Certificates of her experience have been issued by the two institutions, copies whereof are annexed as Annexure No. 5 to the writ petition. These certificates are countersigned by the District Basic Education Officer, Bareilly. In the counter affidavit filed by the State/ respondent no. 5 in the writ petition, the contents of Paragraph No. 11 to the writ petition have been admitted. 16. The inexplicable conclusion on facts, therefore, is that the writ petitioner was appointed as an assistant teacher with a recognised school on 01.07.2009 i.e. prior to amendment in the 1978 Rules w.e.f. 05.12.2012. The writ petitioner was, thus, appointed as an assistant teacher with a recognised school at a time when the 1978 Rules had not been amended to bring in the qualification of passing the TET as essential for an assistant teacher. 17. A learned Single Judge of this Court in S.S. No. 22454 of 2018, Om Prakash Tripathi vs. State of U.P. and Others, decided on 22.12.2019, before whom the same issue came up for consideration, after considering the law laid down by the Supreme Court and two Full Benches, held: (22) In Full Bench's judgment of this Court in the case of Shiv Sharma and Others vs. State of U.P. and Others, 2013 (6) ADJ 310 (FB), it has been held that Notification dated 23.8.2010 and the qualifications determined by the NCTE would have overriding effect in so far State Legislation Act, Rules or Regulations are in conflict with the notification issued by the NCTE which, therefore, has to be ignored. (23) The principle has also been reiterated in the subsequent Full Bench's decision rendered in Anand Kumar Yadav and Others vs. Union of India and Others, 2015 (8) ADJ 338 (FB). (23) The principle has also been reiterated in the subsequent Full Bench's decision rendered in Anand Kumar Yadav and Others vs. Union of India and Others, 2015 (8) ADJ 338 (FB). The decision has been confirmed by the Hon'ble Supreme Court in the case of State of U.P. vs. Anand Yadav, 2017 ADJ 173 . (24) While dealing with the aforesaid provisions, the Hon'ble Supreme Court has held that in the State of Uttar Pradesh, the State Government in a clear violation of mandate of Section 23(2), which vests the power to relax the minimum qualifications is in the Central Government has arrogated to its power which it lacks to grant exemption from the mandatory qualification which are laid down by the NCTE in their application to Shiksha Mitra in the State. Parliament has legislated to provide, in no uncertain terms, that any relaxation of the minimum educational qualifications can only be made by the Central Government. (25) In State of U.P. vs. Shiv Kumar Pathak, 2017 (8) ADJ 164, the question posed before the Supreme Court was with regard to the validity of the decision of the State of Uttar Pradesh in prescribing qualifications for a recruitment of teachers at variance with the guidelines of the National Council for Teachers Education (NCTE) dated 11th February, 2011 under Section 12 (d) read with Section 12 A of the National Council for Teachers Education Act, 1993 (NCTE Act) and Section 23 of the Right of Children to Free and Compulsory Act Education, 2009 (RTE Act) on the ground of repugnancy of State Law with the Central law on a subject falling in concurrent list. (26) In pursuance to the Notification referred hereinabove, the State Government has issued notification dated 27 November, 2017, whereby notifications issued by the National Council for Teacher Education (hereinafter referred to as N.C.T.E. on 23 August 2010, 29 July, 2011, 12 November 2014 and 28 November 2014, prescribing qualification for the post of Assistant Teacher in Primary Institutions of the State has been incorporated. (27) The Full Bench of this Court as well as the Supreme Court in the decisions referred hereinabove leaves no room for doubt that the competent authority to determine the essential qualifications for appointment of teachers in primary schools throughout the country, is vested with the N.C.T.E. The notification issued by the N.C.T.E. would apply from the date, on which the qualification was notified by the N.C.T.E. and not from the date on which the N.C.T.E. notifications was incorporated in the State Act or Rules governing appointment and selection of Primary Teacher. (28) In U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 which was added by way of amendment dated 5.12.2012 prescribing qualifications for the post of Assistant Teachers in addition to other qualifications. It has also been provided that a candidate must have possessed qualification of T.E.T. (29) Under sub-rule (2) of Rule 4 of the Rules of 1978 it has been provided that essential qualification of possessing T.E.T. is must for the post of Assistant Teacher and Rule 4 sub-rule (2) reveals that the qualification for the post of Head Master is that he should have the qualification of five years of experience from a recognized Institution as a teacher. (30) In the present case, the petitioner was granted appointment on the post of Assistant Teacher in Ram Sawak Inter College, Dhamoha, Babaganj, District Pratapgarh in July, 2007 prior to amendment incorporated under Rule 4 of the Rules of 1978. (31) At the relevant point of time, there was no requirement of having T.E.T. qualification for the appointment on the post of Assistant Teacher in the year 2007. First time, amendment was incorporated on 23 August, 2010 and 29 July, 2011 by the N.C.T.E. (32) On perusal of Rule 4 Sub-Rule (2), it is reflected that Head Master is the Principle and only such a teacher who has five years experience from a recognized School in addition to other qualifications would be eligible for the post of Headmaster in order to qualify after amendment. A teacher is required to have an essential qualification of T.E.T. after amendment in Rule 4 on 5.12.2012, therefore it flows therefrom that the candidates from the post of Head Master also have possessed the qualification of T.E.T. The petitioner being appointed prior to the amendment prescribing T.E.T. qualification on the post of Assistant Teacher is not required to have T.E.T. qualification for the post of Head Master. 18. In writing the impugned judgment, the learned Single has also followed the law laid down in Om Prakash Tripathi’s case (supra) and we see no reason to differ from it. Assuming that the National Council for Teacher Education (NCTE) Guidelines dated 11.02.2011, issued under Section 12(d) read with Section 12A of the National Council for Teacher Education Act, 1993 and Section 23 of the Right of Children to Free and Compulsory Education Act, 2009, prevail over the 1978 Rules as they stood prior to the Sixth Amendment w.e.f. 05.12.2012, for reason of the Central law prevailing over the State law on a subject falling in the concurrent list, as held in Om Prakash Tripathi’s case (supra), the writ petitioner was appointed as an assistant teacher in a recognized school on 01.07.2009. At that time, there were no NCTE Guidelines at variance with the 1978 Rules. Thus, at the time that the writ petitioner was appointed as an assistant teacher, there was no requirement of passing the TET. The writ petitioner, therefore, was validly appointed an assistant teacher and at the time of consideration of her candidature for the post of Headmistress, neither the amendment made to the 1978 Rule w.e.f. 05.12.2012 nor the NCTE Guidelines, that came after the writ petitioner's appointment as an assistant teacher, can be read retrospectively to render her appointment as an assistant teacher a nullity. The writ petitioner was validly appointed as an assistant teacher. Her experience as such, in recognised schools, qualifies her for the post of a headmistress under the 1978 Rules. This is particularly so, inasmuch as there is no requirement for a headmistress as such, passing the TET under the 1978 Rules. No other provision has been brought to our notice, which may directly require a headmistress of a Junior High School to pass the TET for the purpose of maintaining her candidature as such. 19. No other point was pressed. 20. No other provision has been brought to our notice, which may directly require a headmistress of a Junior High School to pass the TET for the purpose of maintaining her candidature as such. 19. No other point was pressed. 20. In view of the aforesaid facts, we do not find any merit in this appeal. It is dismissed.