# Badri Narain Sharma & Ors v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 1011
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-09
- **Bench:** Munishwar Nath Bhandari, A.C.J. Ajay Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/badri-narain-sharma-ors-v-state-of-u-p-ors-47340
- **Pages:** 7

## Headnote

A. Service Law - Right of Children to Free
and Compulsory Education Act, 2009 -
National Council for Teacher Education Act,
1993 - Section 12-A - Post of Assistant
Teacher
-
Compassionate
appointment
cancelled - Qualification of having TET
certificate, non-fulfillment thereof - Its
effect - Applicability of Act of 2009 - Held,
Section 12-A of the Act of 1993 cannot to
operate in conflict to the provisions of the
Act of 2009 and notification issued therein.
The field is now occupied by the Act of 2009
to provide educational qualification for
appointment of teachers - Compassionate
appointment cannot be given dehors the
statutory provisions only in reference to the
GO dated 04.09.2000. (Para 21, 24 and 25)
B. Interpretation of Statute - Statutory
provision and administrative order - Conflict
- Overriding effect - Held, Act of 1993 has
no overriding effect over the Act of 2009 -
Section 12-A of the Act of 1993 cannot
govern the provisions of the Act of 2009 in
absence of non-obstante clause rather
protection is in reference to their Regulation
to provide qualification - Held further,
Administrative order cannot stand in conflict
with statutory provisions.(Para 15 and 25)
Appeal dismissed. (E-1)
Cases relied on :-
1012 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

9 All Badri Narain Sharma & Ors. Vs. State of U.P. & Ors.
1011
remedy available under the service rules, so
far as the petitioner is concerned, to have
been availed of before filing the claim
petition.

24. The petitioner's revision was
dismissed on 14.03.2013, which is the final
order under the Rules, 1991. The period of
limitation of one year to file the claim
petition would therefore be counted from
this date and on expiry of one year the
claim petition became barred, in view of
the settled proposition of law that period of
limitation once starts running would not
stop in the absence of any statutory
provision, and would run it's full course.
Filing of representation under Rule 25 on
10.01.2019, which representation was even
not maintainable, would not revive the
petitioner's claim, which had already
become time barred in view of the law laid
down in the cases of S.S. Rathore (supra)
and C. Jacob (supra) that by filing
representation any fresh cause of action can
not arise nor it revives stale or dead claim.

25. In view of the aforesaid, we are of
the considered view that the remedy under
Rule 25 of the Rules, 1991 not being
available to the petitioner, the claim
petition, admittedly filed after six years of
the order of rejection of the petitioner's
revision, was barred by limitation under
Section 5 (1) (b) of the Act, 1976.

26. The claim petition has rightly
been rejected by the Tribunal. The order of
the Tribunal is perfectly justified and calls
for no interference.

27. The writ petition is dismissed.
----------
(2021)09ILR A1011
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2021
BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, A.C.J.
THE HON'BLE AJAY TYAGI, J.

Special Appeal No. 1467of 2012 & other cases

Badri Narain Sharma & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Siddharth Khare, Sri Ashok Khare

Counsel for the Respondents:
C.S.C., Sri Yatindra

A. Service Law - Right of Children to Free
and Compulsory Education Act, 2009 -
National Council for Teacher Education Act,
1993 - Section 12-A - Post of Assistant
Teacher
-
Compassionate
appointment
cancelled - Qualification of having TET
certificate, non-fulfillment thereof - Its
effect - Applicability of Act of 2009 - Held,
Section 12-A of the Act of 1993 cannot to
operate in conflict to the provisions of the
Act of 2009 and notification issued therein.
The field is now occupied by the Act of 2009
to provide educational qualification for
appointment of teachers - Compassionate
appointment cannot be given dehors the
statutory provisions only in reference to the
GO dated 04.09.2000. (Para 21, 24 and 25)
B. Interpretation of Statute - Statutory
provision and administrative order - Conflict
- Overriding effect - Held, Act of 1993 has
no overriding effect over the Act of 2009 -
Section 12-A of the Act of 1993 cannot
govern the provisions of the Act of 2009 in
absence of non-obstante clause rather
protection is in reference to their Regulation
to provide qualification - Held further,
Administrative order cannot stand in conflict
with statutory provisions.(Para 15 and 25)
Appeal dismissed. (E-1)
Cases relied on :-
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Basic Education Board, U.P. Vs Upendra Rai &
ors. (2008) 3 SCC 432
2. Irrigineni Venkata Krishna Vs Government of
A.P., (2010) 15
SCC 319
3. State of U.P. & ors. Vs Bhupendra Nath
Tripathi & ors. (2010) 13 SCC 203

(Delivered by Hon'ble Munishwar Nath
Bhandari, A.C.J.)

1. Heard Sri Ashok Khare, learned
Senior Advocate, assisted by Sri Siddharth
Khare, learned counsel for the petitionerappellants and Sri Gopal Chandra Saxena,
learned Standing Counsel for the Staterespondents.

2. By this batch of appeals, the
challenge is made to the judgment dated
25th July, 2012 whereby the writ petitions
preferred by the petitioner-appellants were
dismissed.
The
writ
petitions
were
preferred to challenge the order dated 12th
June, 2012 whereby Secretary, Basic
Education Board, U.P. Allahabad directed
for disengagement of Assistant Teachers
appointed on compassionate ground. The
appointments to the petitioner-appellants
were on the terms and conditions contained
in the Government Order dated 4th
September, 2000. The petitioner-appellants
were
to
acquire
the
BTC
training
qualification to get regular appointments.
Some of the petitioner-appellants were sent
for BTC training but pursuant to the order
dated 12th June, 2012 of the Uttar Pradesh
Basic Education Board, all the petitionerappellants were disengaged on the ground
that untrained teachers could not have been
appointed after enforcement of the Uttar
Pradesh Right of Children to Free and
Compulsory Education Rules, 2011 (for
short "Rules of 2011").

3. The controversy raised in these
appeals mainly rests on the Rules of 2011
and the Right of Children to Free and
Compulsory Education Act, 2009 (for short
"Act of 2009"). After the enactment of Act
of 2009, and Notification dated 23rd
August, 2010 under Section 23 of the Act
of 2009, the appointment on the post of
teachers could not have been given unless
one has passed the Teachers Eligibility Test
(for short "TET"). It is an admitted fact that
none of the petitioner-appellants were
possessing TET certificate prior to their
appointment or giving effect to the Rules of
2011.

4. The learned Single Judge had
considered the issue in detail and after
referring to the provisions of Act of 2009
so as the Rules of 2011 apart from
consideration of U.P. Basic Education
Ordinance, 1972 and U.P. Basic Education
(Teachers) Service Rules, 1981, dismissed
the writ petitions.

5. Learned counsel for the appellants
submits that the learned Single Judge has
referred to the Rules of 2011 given effect
from 27th July, 2011 and the Act of 2009
but failed to take note of Section 12-A of
the National Council for Teacher Education
Act, 1993 (for short "Act of 1993"). It is
submitted that Amendment in the Act of
1993 by the Act No. 18 of 2011 was given
effect
since
1st
June,
2012.
The
appointments of those teachers engaged in
pre- primary, primary, upper primary,
secondary and senior secondary etc. were
saved even if they were not qualified prior
to Amending Act of 2011 but has been
ignored by the learned Single Judge. He
submits that the petitioner-appellants were
given appointment on compassionate basis
knowing it well that they have not passed
out TET, therefore, subsequently they
9 All Badri Narain Sharma & Ors. Vs. State of U.P. & Ors.
1013
could not have been disengaged either in
reference to the Rules of 2011 or the Act of
2009. Their appointments were otherwise
saved by Section 12-A of the Act of 1993.

6. Coming to the facts of this case, it
is submitted that on earlier occasion special
appeals were dismissed by the Division
Bench but on a review petition, the
judgment was recalled and matters were
transmitted for fresh hearing. The judgment
of the learned Single Judge is in ignorance
of Section 12-A of the Act of 1993, brought
by Amendment of 2011 with effect from
1st June, 2012. Accordingly, the case of the
petitioner-appellants should have been
governed by the said provision. The
proviso
to
Section 12-A
has given
protection to all appointments made prior
thereto despite such appointments not being
in conformity with the qualifications
specified in that regard.

7. It is submitted that in exercise of
the powers given under Section 23(1) of the
Act of 2009, the Central Government
designated National Council for Teacher
Education as academic authority for laying
down qualifications of the teachers. The
National Council for Teacher Education
issued a notification on 23rd August, 2010
specifying the qualification for the teachers
which includes TET. The TET is to be
conducted by the State Government or
Central Government as was made one of
the qualification for the teachers. Section
12-A of the Act of 1993 was brought to
save all those appointments made prior to
Amendment which include even the
requirement of TET certificate.

8. A reference of circular dated 12th
June, 2012 issued by the State Government
has been given to show requirement of TET
with effect from 27th July, 2011 that is the
date of enforcement of the Rules of 2011.
The reference of the appointments made
between 23rd August, 2010 to 27th July,
2011 and subsequently between 27th July,
2011 to 12th June, 2012 has been given.
The compassionate appointments given
prior to 27th July, 2011 were not affected
rather incumbents were continued without
the TET certificate while it was given
effect
on
the
appointments
made
subsequent 27th July, 2011. The circular
was issued ignoring Section 12-A of the
Act of 1993.

9. Learned counsel for the appellants
has made reference of the judgment of the
Apex court in the case of Basic Education
Board, U.P. Vs. Upendra Rai and others,
(2008) 3 SCC 432 and also in the case of
Irrigineni
Venkata
Krishna
Vs.
Government of Andhra Pradesh, (2010)
15 SCC 319 to support his argument. He
has also submitted that compassionate
appointments
are
governed
by
the
Government Order dated 4th September,
2000 which permits appointments of
untrained teachers also. The appointment of
the
petitioner-appellants
were
in
consonance to the aforesaid Government
Order as otherwise U.P. Basic Education
(Teachers) Service Rules, 1981 are totally
silent
with
regard
to
compassionate
appointment. The field of compassionate
appointment
is
occupied
by
the
Government Order dated 4th September,
2000 thus, the learned Single Judge should
have considered the case in reference to the
aforesaid apart from Section 12-A of the
Act of 1993.

10. The appeals have been contested
by
the
counsel
for
the
nonappellants/respondents. It is submitted that
learned Single Judge has considered all the
issues in reference to the provisions
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
applicable to the case. There is no error
therein so as to cause interference rather the
judgment of the learned Single Judge may
be upheld. It has not only considered the
provisions of the Act of 2009 but the
provisions of the Act of 1993 apart from
other provisions. The prayer is accordingly
to dismiss the appeals.

11. We are not elaborately discussing
the argument of the learned counsel for the
non-appellants/respondents at this stage
rather it would be discussed during the
course of discussion of the arguments of
the learned counsel for the appellants.

12. The judgment of the learned
Single Judge was earlier tested by the
Division Bench of this Court in the batch of
appeals. The judgment of the learned
Single Judge was upheld finding no
infirmity therein. The judgment however
reviewed and accordingly listed again for
fresh consideration. The writ petition was
filed involving various questions for
consideration.
However,
the
present
appeals were pressed only in reference to
Section 12-A of the Act of 1993.

13. The brief facts of the case shows
that all the appellants were appointed in the
month of August, 2011 on temporary basis.
It was in terms of the Government Order
where there was a condition to undergo
BTC
training.
The
Secretary,
Basic
Education Board, U.P. Allahabad however
issued a circular on 12th June, 2012 and in
pursuance to which an order was issued on
29th June, 2012 by the Basic Shiksha
Adhikari for cancellation of appointment. It
was challenged in bunch of writ petitions
which were dismissed by the judgment
dated 25th July, 2012. The case of the
appellants is that they were appointed as
untrained Assistant Teachers on temporary
basis with a condition to undergo BTC
training. The order of cancellation of
appointment came while few appellants
were sent for training. The circular dated
12th June, 2012 was not issued in reference
to the BTC training but the Act of 2009 and
the Rules of 2011. The appointment on the
post of teachers was made subject to
possession of certificate of TET. Finding
appointments dehors the Act and Rules, the
order was issued for their cancellation.

14. The issue now raised by the
learned counsel for the appellants is in
reference to Section 12-A of the Act of
1993 which, according to them, saves all
the appointments made on or before giving
effect to the Amendment of year 2011 in
the Act of 1993. The provision aforesaid is
quoted herein for ready reference:

"12-A. Power of Council to
determine
minimum
standards
of
education of school teachers. - For the
purpose
of
maintaining
standards
of
education in schools, the Council may, by
regulations, determine the qualifications of
persons for being recruited as teachers in
any pre-primary, primary, upper primary,
secondary,
senior
secondary
or
intermediate school or college, by whatever
name called, established, run, aided or
recognised by the Central Government or a
State Government or a local or other
authority;

Provided that nothing in this
section
shall
adversely
affect
the
continuance of any person recruited in any
pre-primary,
primary,
upper
primary,
secondary,
senior
secondary
or
intermediate school or colleges, under any
rule, regulation or order made by the
Central Government, a State Government, a
local or other authority, immediately before
9 All Badri Narain Sharma & Ors. Vs. State of U.P. & Ors.
1015
the commencement of the National Council
for Teacher Education (Amendment) Act,
2011 solely on the ground of nonfulfilment of such qualifications as may be
specified by the Council;

Provided
further
that
the
minimum qualifications of a teacher
referred to in the first proviso shall be
acquired within the period specified in this
Act or under the Right of

Children to Free and Compulsory
Education Act, 2009 (35 of 2009)]."

15. The main provision gives power
to
the
Council
to
determine
the
qualification by a Regulation. It is to
maintain the standard of the schools. The
first proviso to Section 12-A of the Act of
1993 protect those recruited as teachers
under any rule, regulation or order of the
Central Government, State Government or
local or other authority, immediately before
the commencement of the Amendment Act
of 2011. It is despite non-fulfilment of the
qualifications specified by the Council
under its Regulation. The protection under
the first proviso is to the qualification
specified by the Council in the Regulation
and obviously it should be under the Act of
1993 and the Regulation made thereunder.
The Act of 1993 has no overriding effect
on the Act of 2009. Section 12-A of the Act
of 1993 cannot govern the provisions of the
Act of 2009 in absence of non-obstante
clause rather protection is in reference to
their Regulation to provide qualification.

16. A Notification dated 23rd August,
2010 was issued by the Council to provide
qualification under Section 23 of the Act of
2009 and not under the Act of 1993. Section
23 of the Act of 2009, as was existing in the
year 2011 is quoted hereunder for ready
reference:

"23.
Qualifications
for
appointment and terms and conditions of
service of teachers. - (1) Any person
possessing such minimum qualifications, as
laid down by an academic authority,
authorised by the Central Government, by
notification, shall be eligible for appointment
as a teacher.

(2) Where a State does not have
adequate institutions offering courses or
training in teacher education, or teachers
possessing minimum qualifications as laid
down under sub-section (1) are not available
in
sufficient
numbers,
the
Central
Government may, if it deems necessary, by
notification, relax the minimum qualifications
required for appointment as a teacher, for
such period, not exceeding five years, as may
be specified in that notification:

Provided that a teacher who, at the
commencement of this Act, does not possess
minimum qualifications as laid down under
sub-section (1), shall acquire such minimum
qualifications within a period of five years:

(3) The salary and allowances
payable to, and the terms and conditions of
service of, teacher shall be such as may be
prescribed."

17.

Sub-section
(1)
requires
possession of the minimum qualifications
for appointment as teacher. It is as laid
down by the academic authority authorized
by the Central Government.

18. It is a fact that in pursuance to the
powers given to the Central Government,
the NCTE was nominated as academic
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
authority and notification dated 23rd
August, 2010 was issued thereunder to
provide the minimum qualification for
appointment of teachers. The qualification
of TET was provided under the said
notification. Section 12-A of the Act of
1993 does not supersede the provisions of
the Act of 2009 or the Rules made
thereunder. The Act of 1993 is for
maintaining standards of the education in
the school. The Council under the Act of
1993 is to govern the training course and
regulate the institution for the teachers
training. The minimum qualification for the
appointment of the teachers is now
governed by the Act of 2009 and the Rules
made thereunder. The Notification dated
23rd August, 2010 was published under the
Act
of
2009
to
provide
minimum
qualification for the teachers.

19. The Notification issued on 23rd
August, 2010 was made applicable without
exception
to
provide
minimum
qualification for the teachers. The State of
U.P. come out with the Rules of 2011 to
provide the minimum qualification for the
teachers. It was given effect from 27th July,
2011. It is admitted case of the petitionerappellants that they were appointed on the
post of Assistant Teachers subsequent to it.
According to Rules of 2011 also one was
required to be in possession of the
certificate of TET which the petitionerappellants
were
not
possessing.
The
qualification prescribed under the Act of
2009 by the notification dated 23rd August
2010 has been enforced by all the States.

20. The first proviso to Section 23 of
the Act of 2009 gives protection of five
years
to
the
teachers,
who
at
the
commencement were not possessing the
qualification. It is not for those to be
appointed after commencement. Section
12-A of the Act of 1993 cannot be read in
conflict to the substantive provisions of the
Act of 2009. It is also a fact that appellants
have not qualified TET even now, as
admitted by their counsel.

21. In view of the above, a candidate
was not eligible to be appointed as
Assistant Teacher, if he was not in
possession of the certificate of TET.

22. The learned Single Judge has
elaborately discussed the issue in regard to
the operation of the Act of 2009 and the
Act of 1993. Both the Acts operate
separately. The Act of 1993 was enacted
with an object to achieve planned and
coordinated
development
for
teacher
education system throughout the country. It
was to come out with the norms and
standards for teachers education system and
for the matters connected therewith. The
functions of the Council are enumerated in
Section 12 of the Act of 1993. The Act of
1993
contemplates
recognition
and
permission of NCTE for running the
courses or training for teachers education.
Section 17 governs the course and training
of teacher education with a stipulation that
in
violation
thereof,
grant
of
the
degree/certificate would not be a valid
qualification. The Council thus operate for
recognition and all other related issues
pertaining to the institutions for the training
courses. The Act of 1993 does not operate
in reference to the qualification of teachers
for appointment though the Rules were
brought to provide minimum qualification.
The Apex Court in the case of State of
U.P. and Others Vs. Bhupendra Nath
Tripathi and Ors., (2010) 13 SCC 203
however clarified the aforesaid.

23. Article 41 in Part IV read with
Article 45 of the Constitution of India
9 All Jitendra Singh Vs. U.O.I. & Ors.
1017
provides for State endeavour to come out
with free and compulsory education for the
children and accordingly by Constitutional
(86th
Amendment)
Act,
2002,
the
Parliament also recognized ''Right to
Education' and after inserting Clause (k) in
Article 51A vide Section 4 of Constitution
(86th Amendment) Act, 2002, it enacted
the Act of 2009 which was given effect
from 1st April, 2010.

24. The qualification for appointment
of teachers is now governed by the Act of
2009 and Rules made thereunder. Section
12-A of the Act of 1993 cannot to operate
in conflict to the provisions of the Act of
2009 and notification issued therein. The
field is now occupied by the Act of 2009 to
provide
educational
qualification
for
appointment of teachers. Section 12-A of
the Act of 1993 would not apply only for
the reason that notification dated 23rd
August, 2010 was issued by the Council. It
was not under the Act of 1993 but the Act
of 2009. It is by the Council as an academic
authority. Under Section 23 of the Act of
2009, the Government of India had
nominated Council as academic authority
to
lay
down
the
qualification
for
appointment under the Act of 2009. The
proviso to Section 12-A cannot apply
dehors the Act of 2009 and Rules made
thereunder. Therefore, we are not inclined
to accept the argument of learned counsel
for the petitioner-appellants that even if the
appellants
were
not
possessing
TET
certificate, their appointments should not
have been cancelled in reference to the
circular of the Government.

25. t this stage, it is to be clarified that
even compassionate appointment cannot be
given dehors the statutory provisions only
in reference to the Government Order dated
4th September, 2000. The administrative
order cannot stand in conflict with statutory
provisions.

26. The elaborate discussion of all
other issues has been made by the learned
Single Judge and is not being challenged
other than argument in reference to Section
12-A of the Act of 1993. Finding no merit
in the arguments, appeals fail and are
dismissed accordingly.
----------
(2021)09ILR A1017
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.09.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 2295 of 2021

Jitendra Singh ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Dinesh Kumar Singh (D.K.S.

Counsel for the Respondents:
A.S.G., Raj Kumar Singh

A. Service Law - Rajiv Gandhi National
Aviation
University
Act,
2013
-
Termination order - Nature - Simplicitor
or punitive, how it can be determined -
Held, the language of the impugned order
of termination would establish the nature
of
termination
order,
whether
it
is
simplicitor or punitive. (Para 30)
B. Service law - Termination order -
Opportunity of hearing - Principle of
Natural Justice - Held, the language of the
impugned orders in the present case
imputes something over and above mere
unsuitability for the job and, therefore,
such impugned order should have not
been issued against the petitioner without