# (2007) 3 ILRA 873

- **Citation:** (2007) 3 ILRA 873
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-02
- **Case number:** Special Appeal No.1368 of 2007
- **Bench:** H.L. Gokhale, C.J. Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2007-3-ilra-873-41115
- **Pages:** 7

## Headnote

Constitution of India, Art. 226-Admission
in
Special
B.T.C.
course-appellant
obtained
B.Ed.
Degree
from
the
university/College prior to equivalence
from N.C.T.E.-held not eligible as per
874 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
terms of advertisement requirement of
U.P. Government-it is for employer to fix
the
criteria-main
requirement
B.Ed.
Degree
from
the
institution
having
recognition from N.C.T.E.-not fulfilledview taken by learned Single Judge-heldproper.

Held: Para 14

There is no difficulty in saying that the
appellants do have the B.Ed. degrees,
which could be said to be valid degree
for other purposes. However, as far as
the present advertisement is concerned,
the State Government clearly laid down
that they want candidates with B.Ed.
degree from the institutions, which have
N.C.T.E. recognition. They are very clear
in their advertisement. We are not
shown that the institutions had the
N.C.T.E. approval for the course at the
time the degrees were obtained and,
therefore, the appellants cannot get the
benefit of the judgment, which was
rendered by the Division Bench in Special
Appeal No.1271 of 2007.
Case law discussed:
20006(4) ESC 2573, 2003(3) SCC 548, JT
2006(4) SC 201, 2008(8) SCC 228

## Text

3 All] Ashwani Kumar Tiwari and others V.State of U.P. and others
873
bread-earner but is caused by their fate
and for the reason of non availability of
employment. They are not in a position,
even though they are alive, to earn two
times simple bread what to talk of bread
and butter. The distress of such persons is
neither negligible nor can be ignored. In a
pragmatic society, efforts had to be made
to
read
and
apply
law
wherever
permissible
which
will
extend
an
opportunity of equal consideration for
public employment to public at large
irrespective of their lineage ancestral
hierarchy etc.

15. It is not disputed that as long
back as on 29th August 2001, the
department
issued
an
order
for
appointment of petitioner for class-IV
post but he did not join the same. This
fact has also been noticed by this Court in
its earlier judgment where this Court has
observed:-

"The counsel for the petitioner
specifically stated that petitioner has not
joined on Class IVth post nor is working."

16. It is thus apparent from the
record that the petitioner did not feel
necessary to join the employment and get
wages so as to earn his livelihood. He was
not at all interested to join the offered post
on his own volition and was ready to wait
till he is given a post of his choice. In
view of the fact that the compassionate
appointment is not the scheme for
providing status to the person, in my view
the petitioner has erred in refusing to
accept the class-IV post and insisting for
his recruitment to the post of Constable
(M).
The
respondents
have
rightly
considered the matter and in accordance
with the rules. Admittedly, petitioner did
not fulfil the qualification for the
recruitment of constable and, therefore, he
was rightly offered for the post of class IV
but he failed to join the same.

17. Therefore, in the aforementioned
circumstances, this writ petition lacks
merit and is dismissed. No order as to
costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.11.2007

BEFORE
THE HON'BLE H.L. GOKHALE, C.J.
THE HON'BLE RAKESH TIWARI, J.

Special Appeal No.[910] of 2007
Along with:
Special Appeal No.[911] of 2007,
and
Special Appeal No.[927] of 2007
and
Special Appeal No.1368 of 2007
and
Special Appeal No.[951] of 2007

Ashwani Kumar Tiwari and others

 ...Appellants
Versus
State of U.P. and others ...Respondents

Counsel for the Appellants:
Sri Udai Shankar Mishra,
Sri Irshad Ali,
Sri Manoj Gautam,
Sri A.K. Malviya,
Sri P.K. Ganguli

Counsel for the Respondents:
Sri Abhinav Upadhya
S.C.

Constitution of India, Art. 226-Admission
in
Special
B.T.C.
course-appellant
obtained
B.Ed.
Degree
from
the
university/College prior to equivalence
from N.C.T.E.-held not eligible as per
874 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
terms of advertisement requirement of
U.P. Government-it is for employer to fix
the
criteria-main
requirement
B.Ed.
Degree
from
the
institution
having
recognition from N.C.T.E.-not fulfilledview taken by learned Single Judge-heldproper.

Held: Para 14

There is no difficulty in saying that the
appellants do have the B.Ed. degrees,
which could be said to be valid degree
for other purposes. However, as far as
the present advertisement is concerned,
the State Government clearly laid down
that they want candidates with B.Ed.
degree from the institutions, which have
N.C.T.E. recognition. They are very clear
in their advertisement. We are not
shown that the institutions had the
N.C.T.E. approval for the course at the
time the degrees were obtained and,
therefore, the appellants cannot get the
benefit of the judgment, which was
rendered by the Division Bench in Special
Appeal No.1271 of 2007.
Case law discussed:
20006(4) ESC 2573, 2003(3) SCC 548, JT
2006(4) SC 201, 2008(8) SCC 228

(Delivered by Hon'ble. H.L. Gokhale, C.J.)

1. The appellants in all these five
appeals seek admission to the Special
B.T.C.
Course-2007.
They
are
all
students, who have obtained their B.Ed.
degrees by the Distant Education Mode,
and it is contended by them that in view
of a judgement rendered by a Division
Bench of this Court, to which one of us
(Justice H.L. Gokhale, C.J.) was a party,
in Special Appeal No.1271 of 2007 and
others, on 03.10.2007, they are also
entitled to the admission to the Special
B.T.C. Course-2007.

2. Those appeals arose from a
judgment rendered by a learned Single
Judge in a group of matters, bearing Writ
Petition No. 33987 of 2007, Renu Sharma
vs. State of U.P. and others along with
other connected petitions on 24.8.2007.
The controversy in those matters was with
respect to the advertisement given by the
State Government for the Special B.T.C.
Course 2007. The Government Order
dated 10.7.2007 issued prior thereto had
provided in Clause-II thereof with respect
to the qualification as follows:-

"Only those students will be eligible
for selection to Special B.T.C. Course2007, who have the minimum educational
qualification of graduation and they
should also have the B.Ed. degree from
the recognized colleges/post graduate
colleges/training colleges run by the State
Government/Central Government which
are recognized by the National Council
for Teachers Education. The candidates
must be 'recognized institutional B.Ed.
students'. (the words used in Hindi are
"Anumanya Sansthagat B.Ed. Uttirna
Abhyarthi")".

3. The controversy in those matters
was with respect to the interpretation of
the term Sansthagat Abhyarthi. The
learned Single Judge had taken the view
that it meant only those students who had
taken B.Ed. degree by face-to- face mode
of education and that those who had done
it by distant education mode were
excluded. The Division Bench has taken
the view that the term 'Sansthagat
Abhyarthi'
will
mean
institutional
candidate and the term institutional
candidate does not indicate any specific
mode of education. The Division Bench
also referred to a letter of N.C.T.E. dated
9th August 2007, addressed to the
Principal Secretary (Basic Education)
3 All] Ashwani Kumar Tiwari and others V.State of U.P. and others
875
State of Uttrar Pradesh. The relevant part
of it reads as follows:-

"You may kindly recall that while
giving approval to Government of Uttar
Pradesh for conduct of Special B.T.C. we
have allowed all B.Eds. to be eligible for
the above course as requested by
Government of U.P. No difference was
made regarding B.Ed. (face-to-face) and
B.Ed. (distance mode). As such the
degree awarded by IGNOU, a Central
University
and
Institution/University
recognized by the N.C.T.E. cannot be
treated as inferior to other B.Eds."

4. The N.C.T.E. had clearly stated in
that letter that it was not making any
difference
between
face-to-face
and
distant mode and that the degrees awarded
by
Indira
Gandhi
National
Open
University
(a
Central
University)
constituted under the Act of 1985, cannot
be treated as inferior to other B.Eds.
Similar letter was written concerning U.P.
Rajarshi Tandon Open University.

5. That apart, the Division Bench
noted that this was a scheme to enhance
the teaching facility for primary education
under Sarva Shiksha Abhiyan. The
Special B.T.C. Course was a crash course
of six months to impart necessary
education to the B.Ed. graduates so that
they can qualify to teach the primary
students (for which they are not otherwise
qualified). Some 60,000 teachers were
needed. Many others who had done
training
course
even
in
Physical
Education
were
also
permitted
to
participate and, therefore, there was no
justification to exclude the students who
had done their B.Ed from these two
Universities.

6. Most of the appeals were from the
students of these two Universities and
particularly in view of the aforesaid letter
of N.C.T.E. dated 9th August 2007, which
was addressed well in time to the
authorities of the State Government, the
Division Bench held that the students of
these two Universities will be eligible for
admission to the Special B.T.C. Course
2007. Inasmuch as the last date for
admission was getting expired, the date
was extended till 31.10.2007.

7. Now the present group of appeals
arise out of petitions that had been filed
by
students
coming
from
different
institutions/universities, which provide
B.Ed. degree by distant education. It must
be stated that all these appeals except
Special Appeal No. [951] of 2007 arise
out of the petitions which were heard and
decided
by
the
common
judgment
rendered by the learned Single Judge,
which was considered in Special Appeal
No.1271 of 2007 by the Division Bench,
as stated above. Special Appeal No. [910]
of 2007 is filed by the students of
Mahatma
Gandhi
Gramodaya
Vishwavidyalaya, Chitrakoot, Madhya
Pradesh. As far as this institution is
concerned, there is a specific letter from
the N.C.T.E. dated 22.6.2004, that their
B.Ed. course is recognized from the year
1996-1997. In the counter affidavit filed
by the State, it is submitted, amongst
others, that in view of the provisions of
the IGNOU Act, 1985, the distant
education course of that very University
ought to have the recognition from the
Distance Education Council constituted
under the IGNOU Act. This submission is
made on the basis of the preamble of the
Act read with Section 4 and Section 16
(7) as well as Section 24 (j) of the said
Act.
876 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
8. As far as the recognition from the
Distance Education Council is concerned,
there is no difficulty and this University
does have it. But out of the four
appellants, who have filed this appeal,
Appellants No. 1 and 4 have their B.Ed.
degrees of the year 1994-95 and the
Appellants No.2 and 3 have their B.Ed.
degrees of the year 1995-96, i.e., all prior
to the recognition by NCTE from 199697.

9. Mr. Misra, learned counsel for the
appellants, submits that inasmuch the
concerned University has been given the
recognition by NCTE in 1996-97 and
since the NCTE itself was not in existence
prior to 1st July, 1995, these students
cannot
be
denied
the
benefit
of
equivalence. Mr. Misra, learned counsel
for the appellant relied upon a judgment
of learned Single Judge of Uttranchal
High Court in Anita Khati vs. State of
Uttranchal and another, reported at
2006(4) ESC 2573 (Utt.), to submit that
since the NCTE itself was not in existence
earlier, the prior degree of B.Ed. ought to
be considered for B.T.C. subject to
conditions imposed by the NCTE.

10. Mr. Upadhyay, learned Standing
Counsel appearing for the State, on the
other hand, submitted that as far as this
judgment is concerned, it was with
respect to the Shiksha Visharad degree
obtained in the year 1993, and the
question was as to whether it could be
considered as equivalent to the B.Ed.
degree for the Special B.T.C. Course in
Uttranchal. That apart, he submitted that
the
judgment
of
the
Apex
Court
particularly in Yogesh Kumar and
others vs. Government of NCT, Delhi
and others, reported at 2003 (3) SCC 548
was not placed for consideration before
the learned Single Judge. Mr. Upadhyay
submits that it may be, at the highest, that
these degrees by correspondence course
are equivalent to B.Ed. degree. The
advertisement,
which
the
State
Government had issued, laid down the
requirement of recognition by the NCTE
for the particular degree. The clause
quoted above clearly records that the
candidate has to have the degree from a
University recognized by the University
Grants Commission and that it must also
be recognized by NCTE and that the
persons must be institutional candidates.
He submits that it is for the employer to
decide as to from what source and with
what qualifications the candidate should
be drawn. If the U.P. Basic Shiksha
Parishad lays down that they want the
candidates who have degrees from the
institutions which are recognized by the
NCTE, the candidates ought to have those
qualification. He submits that there is a
justification for this approach. Under the
Norms and standards for B.Ed. (open and
distance learning system) laid down by
NCTE when it comes to a candidate who
is
seeking
admission
to
a
distant
education course, he has to be a teacher
serving in a recognized school with
Bachelor degree having at least two years
experience at the time of admission. The
person concerned has to be currently
employed.
Now
whether
these
requirements were satisfied at the relevant
time, by the candidate concerned when
obtaining
B.Ed.
degree,
cannot
be
verified. It is true that their degrees may
be considered as equivalent to the B.Ed.,
but as far as the present advertisement is
concerned, in his submission, the U.P.
Government had decided not to take
those, who did not have B.Ed. degree
recognized by the NCTE and, this
3 All] Ashwani Kumar Tiwari and others V.State of U.P. and others
877
decision is for the employer concerned to
take.

11. Reliance is placed upon Yogesh
Kumar's case (Supra) particularly on
paragraph 8 of the judgment. The relevant
portion of that paragraph reads as
follows:-

"This last argument advanced also
does not impress us at all. Recruitment to
public services should be held strictly in
accordance
with
the
terms
of
the
advertisement and the recruitment rules, if
any. Deviation from the rules allows entry
to ineligible persons and deprives many
others who could have competed for the
post. Merely because in the past some
deviation and departure was made in
considering the B.Ed. candidates and we
are told that was so done because of the
paucity of T.T.C. Candidates, we cannot
allow a patent illegality to continue. The
recruitment authorities were well aware
that candidates with qualification of
T.T.C. and B.Ed. are available yet they
chose to restrict entry for appointment
only to T.T.C. pass candidates. It is open
to the recruiting authorities to evolve a
policy of recruitment and to decide the
source from which the recruitment is to be
made. So far as B.Ed. qualification is
concerned, in the connected appeals
(CAs. Nos. 1726-28 of 2001) arising from
Kerala which are heard with this appeal,
we have already taken the view that B.Ed.
qualification cannot be treated as a
qualification higher than T.T.C. because
the nature of the training imparted for
grant of certificate and for degree is
totally different and between them there is
no parity whatsoever. It is projected
before us that presently more candidates
available for recruitment to primary
school are from B.Ed. category and very
few from T.T.C. category."
(Underlining supplied)

12. Mr. Upadhyay, then drew our
attention to other judgements. Firstly, he
referred to the judgment in State of
Maharashtra vs. Sant Dnyaneshwar
Shikshan Shatra Mahavidyalaya and
others, reported at JT 2006 (4) S.C. 201
and particularly in paragraphs 47 and 48
thereof. The Apex Court has emphasized
the necessity for the N.C.T.E. recognition
for the concerned educational institutions.
He also drew our attention to paragraphs
8 and 9 of the judgment of Union of
India and others vs. Shah Goverdhan
L. Kabra Teachers' College, reported at
2002 (8) S.C.C. 228, wherein reference is
made to Section 17 (4) of the National
Council for Teacher Education Act. This
Section reads as follows:

"17. (4) - If an institution offers any
course or training in teacher education
after the coming into force of the order
withdrawing
recognition
under
subsection (1), or where an institution
offering a course or training in teacher
education
immediately
before
the
appointed day fails or neglects to obtain
recognition or permission under this Act,
the qualification in teacher education
obtained pursuant to such course or
training or after undertaking a course or
training in such institution, shall not be
treated as a valid qualification for the
purposes of employment under the
Central
Government,
any
State
Government or University, or in any
school, college or other educational body
aided by the Central Government or any
State Government."
878 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Emphasis was laid that the institution
concerned must obtain the N.C.T.E.
permission after the Act comes into force
and degrees, which are given before or
after the permission is withdrawn, are not
valid.

13. Mr. Upadhyay, therefore,
submits that the dicta in Yogesh Kumar's
case (Supra) will have to be followed and
though
these
candidates
may
be
considered as having B.Ed. degrees,
inasmuch as at the relevant time, the
institution did not have the N.C.T.E.
recognition and since the Government is
insisting
on
that
as
a
necessary
requirement, such students cannot be
imposed on the government.

14. We have considered the
submissions of all the learned counsels. In
our view, there is much force in the
submission of Mr. Upadhyay. There is no
difficulty in saying that the appellants do
have the B.Ed. degrees, which could be
said to be valid degree for other purposes.
However,
as
far
as
the
present
advertisement is concerned, the State
Government clearly laid down that they
want candidates with B.Ed. degree from
the institutions, which have N.C.T.E.
recognition. They are very clear in their
advertisement. We are not shown that the
institutions had the N.C.T.E. approval for
the course at the time the degrees were
obtained and, therefore, the appellants
cannot get the benefit of the judgment,
which was rendered by the Division
Bench in Special Appeal No.1271 of
2007.

15. Similar is the position in Special
Appeal No. [911] of 2007. The appellants
claim to be the students of Barkatullah
Vishwavidyalaya, Bhopal (M.P.). They
have not produced any document that the
University concerned had recognition
from the N.C.T.E. at the time they got
their degrees in the year 1994-95 and
1995-96.

16. Same is the position in Special
Appeal No. [927] of 2007, which has
been filed by a student of Awadhesh
Pratap Singh University, Riwa (M.P.).
The appellant has not placed on record as
to whether the University concerned had
N.C.T.E. recognition when he obtained
degree in the year 1996. For this reason,
this appellant cannot get the benefit of the
above judgment rendered by the Division
Bench. Consequently, the Special Appeals
No. [910], [911] and [927] all of 2007 are
hereby dismissed.

17. The facts of Special Appeal No.
1368 of 2007 are different. Their students
are from Jamia Millia Islamia University.
The University did have the N.C.T.E.
recognition way back in November 2003.
The University also has the recognition of
the Distance Education Council. The
students concerned have obtained their
degrees subsequent to this approval from
the N.C.T.E. These appellants, therefore,
cannot be denied the benefit of the above
judgment rendered by the Division Bench.
This appeal is, therefore, allowed. We,
however, make it clear that the benefit
will be available only to these appellants
since they were already in court and were
following their applications and litigation
vigilantly. Although we allow Special
Appeal No. 1368 of 2007, we make it
clear that the benefit will be confined only
to the appellants and none others.

18. Lastly, we come to Special
Appeal No. [951] of 2007. The appellants
are the students, who have done their
3 All] Ramesh Chandra Sharma V.D.J., Farrukhabad and another
879
B.Ed. in Special Education meant for the
specially
challenged
students.
The
appellants have produced the document of
19th January 2005, which shows that the
NCTE has entered into a Memorandum of
Understanding
with
Rehabilitation
Council
of
India
on
19.1.2005
recognizing
that
the
Rehabilitation
Council of India will decide the minimum
standard for offering teachers' education
for
specific
disability
specialization.
Madhya Pradesh Bhoj (Open) University,
Bhopal from where the appellants had
studied, has the recognition from this
Rehabilitation Council of India. The fact,
however, remains that they have obtained
their degrees in the year 2003, which is
prior to this equivalence being granted by
NCTE. That being so, at the relevant time,
they had not obtained the degrees from
the institution, which could be said to be
recognized by the NCTE or by any
equivalent body. For this reason, this
appeal cannot succeed and, therefore,
stands dismissed.

19. All these appeals stand disposed
of with this order. There will not be any
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2007

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 55192 of 2007

Ramesh Chandra Sharma
...Petitioner
Versus
District Judge, Farrukhabad and another

 ...Respondents

Counsel for the Petitioner:
Sri J.P. Singh
Counsel for the Respondents:
Sri Amit Sthalekar

Constitution
of
India
Art.
226Disciplinary proceeding-initiated after 12
years-challenged on ground of delayheld-initiation of belated enquiry not
fetal but once enquiry initiated but not
conclude-direction issued to conclude
the same within specific period.

Held: Para 6

The submission that delay of about 12
years is fatal for inquiry is thoroughly
misconceived. There is no principle of
law that an inquiry would stand vitiated
merely for the reason that it has been
initiated after a long time.
Case law discussed:
1995 (2) SCC-570, 1999 SCC (L&R)-646, AIR
2006 SC-2064, W.P. No. 6095 (S/S) decided
on 9.8.07

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard learned counsel for the
petitioner.

2. The petitioner, an employee of the
District Judgeship, Farrukhabad, has filed
this petition challenging the order dated
05.09.2007 passed by the District Judge,
Farrukhabad conducting regular inquiry
against the petitioner and appointing
inquiry officer for the said purpose and
against the order dated 15.10.2007 which
is a consequential order since earlier
inquiry officer was posted as A.D.J. III
and now he is A.D.J. II.

3. Learned counsel for the petitioner
submits that he has requested the District
Judge to change the inquiry officer and
since no action has been taken thereon,
therefore, he is not able to participate in
the inquiry.