# Anita Singh v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1878
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-19
- **Case number:** Writ A No. 48219 of 2013
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anita-singh-v-state-of-u-p-ors-45269
- **Pages:** 7

## Headnote

C.S.C., Sri Amit Shukla, Sri Satyendra
Chandra

A.
Eligibility/qualification
-
a
person
possessing Bachelor's degree in physical
education is not eligible to be a Principal
of an Intermediate College
The
training
qualification
possessed
by
respondent no. 5 is not even a bachelor
qualification in physical education but she
possess an inferior qualification of diploma in
physical education. Therefore, in light of the Full
Bench decision in the case of Amal Kishore
Singh Vs UOI she has no right to continue as a
principal. (para 8 & 11)
B. Doctrine of necessity - handing over the
charge of office of Principal can only be
justified only as long as a qualified and
eligible teacher is not available to be
appointed as officiating principal
On the date of accrual of vacancy i.e.,
30.06.2009 the petitioner was not eligible to
officiate on the post of principal. It was in that
context that a decision had to be taken by the
Managing Committee to hand over the charge to
someone of the office of principal as the office
could
not
have
been
left
vacant.
The
appointment of respondent no. 5, therefore,
may be justified on the touchstone of doctrine
of necessity but such continuance can be
justified only so long as an eligible person is not
eligible to function as the principal. (para 10)
Writ Petition accepted/ disposed of (not stated)
(E-10)

Lists of cases cited

## Text

1878 INDIAN LAW REPORTS ALLAHABAD SERIES
property in the vicinity. It is well settled
that the burden of proving that the market
value of the property is more than that
disclosed in the sale deed is to be
discharged by the State, which the State has
failed to discharge.

8. Considering and following the
ratio of the judgments in the cases of
Sarvoday Babu Uddeshiya Vikas Samiti
(Supra) and M/s Prosperous Buildcon
Pvt. Ltd. v. State of U.P. and others, I
have no hesitation in holding that the
order dated 20th July, 2009 deserves to
be aside, as the same is based upon the
view that the land in question has the
potential to be used as a commercial
land. Consequently, the appellate order
dated 14.6.2010 also quashed. The
amount deposited by the petitioner in
terms of the order passed by this Court
shall be refunded to the petitioner,
along with interest at the rate of 8% per
annum, within a period of four months
from the date when an application is
filed for refund of the same along with
a certified copy of this order.

9. The writ petition is allowed in
terms of the said order.
----------
(2020)02ILR A1878

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2019

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 48219 of 2013

Anita Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare, Sri
Arun Kumar, Sri S.K. Dixit

Counsel for the Respondents:
C.S.C., Sri Amit Shukla, Sri Satyendra
Chandra

A.
Eligibility/qualification
-
a
person
possessing Bachelor's degree in physical
education is not eligible to be a Principal
of an Intermediate College
The
training
qualification
possessed
by
respondent no. 5 is not even a bachelor
qualification in physical education but she
possess an inferior qualification of diploma in
physical education. Therefore, in light of the Full
Bench decision in the case of Amal Kishore
Singh Vs UOI she has no right to continue as a
principal. (para 8 & 11)
B. Doctrine of necessity - handing over the
charge of office of Principal can only be
justified only as long as a qualified and
eligible teacher is not available to be
appointed as officiating principal
On the date of accrual of vacancy i.e.,
30.06.2009 the petitioner was not eligible to
officiate on the post of principal. It was in that
context that a decision had to be taken by the
Managing Committee to hand over the charge to
someone of the office of principal as the office
could
not
have
been
left
vacant.
The
appointment of respondent no. 5, therefore,
may be justified on the touchstone of doctrine
of necessity but such continuance can be
justified only so long as an eligible person is not
eligible to function as the principal. (para 10)
Writ Petition accepted/ disposed of (not stated)
(E-10)

Lists of cases cited

1. Amal Kishore Singh Vs. State of U.P. and ors
Special Appeal No. 1247 of 2013 (followed)

2. Smt. Hemlata Rajput Vs State of U.P. and ors
2019(9) ADJ 93 (followed)
2 All. Anita Singh Vs. State of U.P. & Ors.
1879
(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. Short question that arises for
consideration in the facts of the present
case is as to who would be eligible to
officiate as Principal of the Institution
concerned i.e. the petitioner or respondent
No.5?

2. Jalaun Balika Inter college, Jalaun
is a recognized institution under the
provisions of U.P. Intermediate Education
Act, 1921 and the provisions of Payment of
Salaries Act, 1971 are also applicable upon
the institution. The post of Principal fell
vacant in the institution on 30.06.2009. An
issue arose as to who would be entitled to
officiate as principal and by the order
impugned dated 16.05.2013, contained in
Annexure No.9 to the writ petition, the
District Inspector of Schools, Jalaun has
accepted the candidature of respondent
No.5 to officiate as principal, while
denying petitioner's candidature primarily
on the ground that on the date of accrual of
vacancy, she was not eligible.

3. Qualification for appointment to
the post of officiate principal is the same
which is contemplated for a regular
principal.
Such
qualification
stands
statutory prescribed in Appendix A to the
Act of 1921 and is reproduced hereinafter:-

"APPENDIX- A

(In reference to Regulation 1 of
Chapter II)

Minimum
qualifications
for
Appointment
of
Head
Master
and
Teachers in Private Recognised Higher
Secondary Schools

1. Degree and diploma in the
concerned
subject
of
any
University
established or regulated by or under any
Central Act, Provincial Act or State Act
which is considered to be a University
under Section 3 of the University Grants
Commission Act, 1956, or of any such
institution specially empowered by any Act
of Parliament shall be recognised for the
purpose
of
minimum
qualifications
prescribed under it.

2. Under it in reference to
prescribed
qualifications
the
word
"trained" means post graduate training
qualification such as L.T., B.T., B. Ed. S.C.
or M. Ed. of any University or institution as
specified in the earlier para or any
equivalent (Degree or Diploma). It also
includes departmental A.T.C. and C.T. with
minimum teaching experience of 5 years'.
J.T.C./B.T.C. Grade teacher shall also be
considered to be. C.T. if he has worked in
C.T. Grade at least for 5 years'.

Sl. No. Name of the Post
& Educational
Training
Experience
Age
Desirable
qualifications
1
2
3
4
1.
Head of
institution (1)
trained M.A. or
M.Sc. or M.Com
or M.Sc. (Agri)
or any equivalent
Post-graduate or
any other degree
which is awarded
by corporate body
specified in
above-mentioned
para one and
should have at
least teaching
experience of
four years in
classes 9-12 in
any training
institute or in any
institution or
university
specified in
above-mentioned
para one or in any
degree college
Minimum
30 years
1880 INDIAN LAW REPORTS ALLAHABAD SERIES
affiliated to such
University or
institution,
recognized by
Board or any
institution
affiliated from
Boards of other
States or such
other institutions
whose
examinations
recognised by the
Board, or should
the condition is
also that he/ she
should not be
below 30 years'
of age.
or
(2) First or
second class postgraduate degree
along with
teaching
experience of ten
years in
Intermediate
classes of any
recognized
institutions or
third class postgraduate degree
with teaching
experience of
fifteen years,
or
(3) Trained postgraduate
diploma-holder in
science. The
condition is that
he has passed this
diploma course in
first or second
class and have
efficiently
worked for 15 or
20 years
respectively after
passing such
diploma course.

Notes: (1) Assistant teachers
having at least second class postgraduate
degree and specified teaching experience of
ten years in Intermediate classes of a
recognised institution may be exempted
from training qualifications, (as per the
provisions contained in the Act.)

(2) Teaching experience includes
teaching prior to or after teaching or both.

(3) Higher classes means classes
from 9 to 12 and experience of teaching
these classes is admissible for the post of
Head Master of Intermediate college."

4. The two contestants to the office
are the petitioner and respondent No.5.
Petitioner is a post graduate in Economics
from the University of Allahabad. The post
graduation has been completed by the
petitioner on 30.05.2002. She has also
acquired training qualification i.e. B.Ed. for
which a certificate has been issued to her
on 15.12.2010. It is not in issue that
petitioner was appointed as lecturer in
Economics in the institution concerned on
02.07.2003, after having being selected by
the U.P. Secondary Education Service
Selection Board. It is also not in dispute
that she has been continuously working as a
lecturer in the institution from 2003 on
wards.

5. As against it, the 5th respondent is
a post graduate in Sanskrit and has also
obtained a certificate in Physical Education
as also a Diploma in Physical Education.
She appears to have been sanctioned
lecturer's grade vide an order dated
23.06.2008, on the ground that she has
completed
10
years
teaching
in
Intermediate section. This benefit has been
granted to her relying upon a Government
Order dated 25.10.2000.

6. The District Inspector of Schools
has examined the candidature of both the
persons and has found that petitioner was
not eligible to officiate as principal on the
date of accrual of vacancy i.e. 30.06.2009.
It has also been observed that respondent
No.5 possess the requisite qualification for
appointment to the post of principal, as she
2 All. Anita Singh Vs. State of U.P. & Ors.
1881
was placed in lecturer's grade in the year
2008 itself.

7. Before adverting to the rival claim
of the two teachers, it would be worth
noticing that a Full Bench of this Court in
Special Appeal No. 1247 of 2013 (Amal
Kishore Singh Vs. State of U.P. and others)
had an occasion to examine the question
whether a persons possessing Bachelor
degree in physical education is qualified to
be appointed as Principal in an recognised
intermediate school. The matter was
referred to larger Bench in light of a
conflict opinion in two previous judgments
of this Court. The Full Bench examined the
relevant provisions of U.P. Secondary
Education Service Selection Board Act,
1982 as also the Statutory Regulations
framed by the NCTE and the question was
ultimately answered in following terms by
the Full Bench in para 47 and 48, which are
reproduced hereinafter:-

"47. We, thus, answer question (i)
in affirmative and question (iii) by holding
that Vindhyachal Yadav does not lay down
the correct law. However, question (ii) has
to be answered, subject to certain riders. A
B.P.Ed. degree being a post graduate
training qualification, would entitle a
person to hold post of Headmaster of a
recognised High School but not that of
Principal of an Intermediate college. The
reason is that under Regulations, 2001 as
well as under Minimum Qualification
Regulations, 2014 framed by NCTE,
B.P.Ed.
is
recognised
as
eligibility
qualification for teaching Classes IX - X
(Secondary/ High School) but not for
Classes
XI
-
XII
(Senior
Secondary/Intermediate).
For
teaching
Intermediate classes, the person should
possess M.P.Ed. degree of at least two
years duration from any National Council
for
Teacher
Education
recognised
institution.
These
regulations
do not
prescribe any separate qualification for
Head
of
institution
and
thus
the
qualification prescribed for a teacher of
Intermediate classes (Senior-Secondary)
would also apply to Head of such an
institution. We have already held above that
the qualifications prescribed by NCTE
would be binding on the State, therefore,
the qualifications prescribed by Minimum
Qualification Regulations, 2014 have to be
read alongwith Appendix-A and thus, a
teacher possessing B.P.Ed. degree, would
not be eligible to hold post of Principal of
an Intermediate College.

48. We, thus, reply to question (ii)
by holding that a teacher in physical
education having B.P.Ed. degree is eligible
to be appointed as Headmaster of a High
School, but not as Principal of an
Intermediate college."

8. B.P.Ed. qualification has, therefore,
not been found to be a valid training
qualification of appointment to the post of
Principal in an intermediate institution. The
training
qualification
possessed
by
respondent
No.5
is
not
a
bachelor
qualification in physical education but she
possess an inferior qualification of diploma
in physical education. In view of the
authoritative pronouncement of law by the
Full Bench in Amal Kishore Singh (Supra)
a person who possess diploma in physical
education cannot be treated as a trained
person for the purposes of appointment to
the post of principal in a recognized
intermediate institution.

9. It is also not in issue that petitioner
did not posses requisite qualification for
appointment to the post of principal on the
date of accrual of vacancy i.e. 30.06.2009.
The
training
qualification
has
been
1882 INDIAN LAW REPORTS ALLAHABAD SERIES
obtained by the petitioner only later in
December, 2010. She was otherwise having
the qualification of 4 year teaching in
classes 9 to 12 having been appointed a
lecturer in Economics in 2003. After the
training qualification has been obtained by
the petitioner she, therefore, becomes
eligible for officiating on the post of
principal.

10. On the date of accrual of vacancy
i.e. 30.06.2009 the petitioner was not
eligible to officiate on the post of principal.
It was in that context that a decision had to
be taken by the Managing Committee to
hand over charge to someone of the office
of principal as the office could not have
been left vacant. The appointment of
respondent
No.5,
therefore,
may
be
justified on the touchstone of doctrine of
necessity but such continuance can be
justified only so long as an eligible person
is not available to function as the principal.
This Court in Smt. Hemlata Rajput Vs.
State of U.P. and others 2019 (9) ADJ 93;
had an occasion to examine the issue in
somewhat similar circumstances where
none of the teacher was found eligible for
appointment to the post of principal when
such office fell vacant. The principal of
doctrine of necessity in such an even has
been pressed into service by this Court. It
has, however, been observed that such
necessity would continue only as long as a
qualified and eligible teacher is not
available to be appointed as officiating
principal. Paragraph 18 to 21 of the
judgment in Smt. Hemlata Rajput (supra) is
extracted hereinafter:-

18. On the date of occurrence of
vacancy on the post of Principal in the
Institution concerned neither the petitioner
nor the respondent possessed eligibility in
terms of Appendix-A. In the absence of
availability of eligible teacher who could
be appointed as Principal in the Institution
it
would become
inevitable
for
the
Institution to appoint someone as the
Officiating Principal even though such
incumbent may not possess requisite
eligibility. Doctrine of necessity would
therefore be attracted to deal with such a
scenario.

19. The doctrine of necessity has
been examined by this Court in Committee
of Management, S.G.M. Inter College,
Khairgarh, District Firozabad (supra).
Para 20 of the judgment examines the
doctrine and is reproduced hereinafter:-

"20. Doctrine of necessity has
been subject matter of consideration in the
case of Election Commission of India and
another Vs. Dr. Subramaniam Swamy and
another (1996) 4 SCC 104 wherein view
has been taken that law permits certain
things to be done as a matter of necessity, if
the choice is between allowing a biased
person is applied to act or to stifle the
action altogether the choice must fall in
favour of the dormer as it is the only way to
promote decision making. Apex Court in
the case of State of U.P. Vs. S.S.L.
Srivastava 2006 (3) SCC 276, has taken the
view that where doctrine of necessity is
applicable compliance with principle of
natural justice would be excluded. Apex
Court in the case of Lalit Kumar Modi Vs.
BCCI 2011 (10) SCC 106, took the view
that doctrine of necessity is common law
doctrine and is applied to tide over the
situation when there are difficulties as law
does not contemplate a vacuum, and a
solution has to be found out rather than
allowing the problem to boil over. Said
judgment have been given pressing the
doctrine of necessity as an exception to the
rule against the doctrine of bias. Said
doctrine of necessity in Principle can also
be pressed into service to tide over the
2 All. Anita Singh Vs. State of U.P. & Ors.
1883
situation, where statutory provisions are
being breached, i.e. where choice is to be
made between an eligible and ineligible
person, and a solution has to be found out
rather than allowing the illegality to
perpetuate."

20. Continuance of respondent as
the Principal on officiating basis even
without possessing essential eligibility
would have to be endorsed by applying the
doctrine of necessity. During first stage the
petitioner had otherwise conveyed her
reluctance to officiate as Principal of the
Institution.
The
respondent
in
such
circumstances if has worked as Officiating
Principal then no exception can be taken to
it and she would be entitled to payment of
salary for the post of Principal in the first
stage of controversy.

21. The doctrine of necessity,
however, would no longer be available
once an eligible teacher is available to
officiate as the Principal in the Institution.
Petitioner admittedly was appointed as
Lecturer after she was selected by the
Board on 4.7.2003. The qualification
required for appointment to the post of
Principal would include ten years teaching
experience on the post of Lecturer. This
experience of ten years is acquired by the
petitioner on 4.7.2013. The records further
reveal that the Committee of Management
of the Institution concerned has also taken
a decision on 24.8.2013 to appoint the
petitioner
as
the
Principal
of
the
Institution. The doctrine of necessity,
therefore, cannot extend beyond 24.8.2013,
inasmuch as the competent authority i.e.
the Committee of Management had acted in
accordance with Section 18 of the Act of
1982 in appointing the senior most eligible
teacher as Officiating Principal."

11. Applying the principle laid down
in the case of Smt. Hemlata Rajput (supra),
this court finds that the District Inspector of
Schools, Jalaun was not justified in
rejecting candidature of petitioner to
officiate as principal of the institution
concerned merely for the reason that on the
date of accrual of vacancy the petitioner
was not eligible to be appointed as
principal. Respondent No.5 since has been
to found not to be possessing requisite
qualification to be appointed as officiating
principal in light of the Full Bench Judgmet
of this Court in the case of Amal Kishore
Singh (supra), she has no right to continue
as
principal
any
further. The order
impugned dated 16.05.2013, therefore,
cannot be sustained and is set aside.

12. The District Inspector of
Schools is directed to pass a fresh order
in light of the observation made above,
for the senior most eligible person to be
allowed to officiate as principal of the
institution so long as a regularly
recruited
Principal
is
not
made
available by the Commission. As the
petitioner is not disputed to be the
senior most lecturer in the institution,
she would have the right to officiate as
such. A seniority list has been annexed
by the Committee of Management along
with its counter affidavit in which the
name of petitioner is not shown at
Serial 1. It is, however, pointed out that
all persons senior to her have already
retired. The respondent No.5, who is
shown to be senior to petitioner cannot
be considered for appointment in view
of the ratio laid down by Full Bench in
the case of Amal Kishore Singh (supra).
Although
learned
counsel
for
the
Managing Committee states that work
and conduct of the petitioner is not up
to the mark but it is not disputed that no
disciplinary
action
has
ever
been
instituted or is pending against her.
1884 INDIAN LAW REPORTS ALLAHABAD SERIES

13. It is further worth noticing that in
respect of petitioner's working as lecturer
for the last more than 15 years there has
never been any disciplinary action and she
is yet to officiate as principal. The
opposition to petitioner's claim on account
of none satisfactory work, therefore, cannot
be
accepted.
In
such
circumstances
petitioner's claim will not be overlooked
merely for the reason that her work and
performance is not satisfactory.

14. However, as law with regard to
right of a teacher who possess training
qualification in physical education was not
clear and the issue has been resolved only
in October, 2018 by the Larger Bench in
Amal Kishore Singh (supra) and the 5th
respondent has otherwise worked as
officiating principal, the salary already paid
to her for the post of officiating principal
shall not be recovered from her. The
petitioner would be entitled to salary for the
post of officiating principal in accordance
with the provisions of Section 18(2) of the
U.P.
Secondary
Education
Service
Selection Board Act, 1982.
----------
(2020)02ILR A1884

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2020

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Matters Under Article 227 No. 8078 of 2019
(CIVIL)

Nand Lal Keshari ...Petitioner
Versus
Shashi Bhushan Agarwal ...Respondent

Counsel for the Petitioner:
Sri Krishna Nand Rai, Sri Vijay Anand Rai

Counsel for the Respondent:
C.S.C., Smt. Rajni Ojha, Sri Ravindra Nath
Chaubey

A. U.P. Act No. 13 of 1972 : Uttar Pradesh
Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 - Section
20(2)(a) - rent deposited up to the
month of March 2014 - SCC Suit -was
instituted on 7.7.2014 - petitioner - tenant
not in arrears of rent for four months or
more as on the date of institution of the
Suit - suit not maintainable - findings
recorded by the Courts below - arrears of
rent for more than four months as on the
date of institution of SCC Suit - perverse
and
contrary
to
the
documentary
evidences
on
record
-
impugned
judgments and decree in SCC Suit and SCC
Revision - set aside.(Para 22,23)

The plaintiff - respondent is the owner and
landlord of the disputed shop of which the
defendant - petitioner is the tenant at a monthly
rent of Rs. 200/- since 15.10.1982 - arrears of
rent as demanded was not paid by the
defendant - petitioner - plaintiff / landlord /
respondent filed SCC Suit which has been
decreed by the Court of Civil Judge (Senior
Division) - Aggrieved defendant / tenant /
petitioner filed SCC Revision which has been
dismissed by the Court of District Judge.(Para
2,4)

Held:- A suit / case on the ground mentioned in
Section 20(2)(a) of the U.P. Act No. 13 of 1972
for eviction of a tenant from a building after the
determination of his tenancy may be instituted if
the tenant is in arrears of rent for not less than
four months, and has failed to pay the same to
the landlord within one month from the date of
service upon him of a notice of demand.(Para22)

Matters Under Article 227 allowed. (E-7)

List of cases cited:-

1. Harcharan Singh Vs. Smt. Shivrani & others) ,
1981 (2) SCC 535