# Bal Krishana & Ors v. State of U.P. & Ors

- **Citation:** (2023) 2 ILRA 470
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-25
- **Case number:** THE HON'BLE RAJENDRA KUMAR -IV Writ A No. 9739 of 2018
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bal-krishana-ors-v-state-of-u-p-ors-49686
- **Pages:** 17

## Headnote

C.S.C., Sri Abhinava Krishna Srivastava, Sri
Anand Kr. Srivastava, Sri Arun Kumar Yadav,
SriAvneesh Tripathi, Sri Bharat Pratap Singh, Sri
M.N. Singh, Sri Tarun Agarwal

A.
Civil
Law
-
Qualification
for
appointment - Assistant Teacher (Men/
Women) Hindi to teach students of Class
9th and 10th in Government Secondary
Intermediate Schools or Colleges - NCTE
(Determination of Minimum qualifications
for persons to be recruited as Education
Teacher and Physical Education Teacher
in
Pre-primary,
Upper
primary,
Secondary, Sr. Secondary or Intermediate
Schools or colleges) Regulation 2014 -
Regulation 4 prescribes graduation in the
subject
as
minimum
educational
qualification for the post of Assistant
Teacher - U.P. Subordinate Educational
(Trained Graduate Grade) Service Rules,
1983, Rule 8(6) - U.P. Subordinate
Education
(Trained Graduates Grade)
Service
(Fourth
Amendment)
Rules,
2016, Rule 8 - educational qualification
for the post of Assistant Teacher (Hindi)
is (i) Bachelor's degree with Hindi and
Intermediate with Sanskrit (ii) B.Ed. -
Grievance of the petitioners was that
they were graduates in Sanskrit and
Hindi & that the respondents cannot deny
eligibility of the petitioners on the ground
that the petitioners are not intermediate
with Sanskrit subject - Held - The point of
dispute is the prescribing of additional
qualification
of
"Intermediate
with
Sanskrit as a subject or equivalent
examination with Sanskrit" under Rule
8(6)(i) - prescribing of Intermediate with
Sanskrit as a subject, in addition to the
minimum qualification prescribed under
Regulation 4 of the NCTE Regulations,
2014 is looking into the syllabus of Class
9th and 10th - the additional qualification
has a direct bearing with the syllabus
prescribed for Class 9th and 10th -
petitioners
who
have
not
passed
Intermediate with Sanskrit as a subject,
but passed the Intermediate with other
subjects and did graduation in Sanskrit,
can not be said to possess higher
qualification as they have not completed
graduation through the channel/faculty
of the prescribed qualification of Sanskrit
as a subject in Intermediate. (Para 24,
20)

B. Civil Law - Constitution of India,1950 -
Article 226 - Judicial Review - Scope -
Qualification for appointment - essential
qualifications for appointment to a post are
for the employer to access, determine and
decide - Court can not in the garb of
judicial review, sit in the chair of the
appointing authority to decide what is best
for the employer - It is for the employer to
determine and decide the relevancy and
suitability of the qualification for any post
and it is not for the court to consider and
assess
it
-
while
prescribing
the
qualifications for a post, the St., as
employer, may legitimately bear in mind
several factors including the nature of the
job, the aptitudes requisite for the efficient
discharge of duties, the functionality of a
qualification and the content of the course
of studies (Para 15, 16)
2 All. Bal Krishana & Ors. Vs. State of U.P. & Ors.
471
C.
Civil
Law
-
Qualification
for
appointment
-
Possession
of
Higher
Qualification
-
Normal
rule
is
that
candidate with higher qualification is
deemed to fulfill the lower qualification
prescribed for a post - But that higher
qualification has to be in the same
channel - Further, this rule will be subject
to an exception - Where the prescription
of a particular qualification is found to be
relevant for discharging the functions of
that post and at the same time, the
Government is able to demonstrate that
for want of said qualification a candidate
may not be suitable for the post, even if
he possesses a "better" qualification but
that
"better"
qualification
has
no
relevance with the functions attached
with the post (Para 19)

D. Civil Law - Interpretation - Principles of
Constitutional Validity
- constitutional
validity of an Act can be challenged only
on two grounds, viz. (i) lack of legislative
competence; and (ii) violation of any of
the Fu

## Text

_Characters 0–39,957 of 55,846. This is a partial read: ask again with offset=39957 for what follows._

470 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2023) 2 ILRA 470
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.01.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE RAJENDRA KUMAR -IV

Writ A No. 9739 of 2018
with connected cases

Bal Krishana & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Satyaveer Singh, Sri Arun Kumar Yadav, Sri
Ravindra Kumar Patel, Sri Saquib Mukhtar, Sri
Satyaveer Singh, Sri Shri Krishna Mishra, Sri
Thakur Prasad Dubey, Sri Yawar Mukhtar, Sri T.P.
Singh(Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Abhinava Krishna Srivastava, Sri
Anand Kr. Srivastava, Sri Arun Kumar Yadav,
SriAvneesh Tripathi, Sri Bharat Pratap Singh, Sri
M.N. Singh, Sri Tarun Agarwal

A.
Civil
Law
-
Qualification
for
appointment - Assistant Teacher (Men/
Women) Hindi to teach students of Class
9th and 10th in Government Secondary
Intermediate Schools or Colleges - NCTE
(Determination of Minimum qualifications
for persons to be recruited as Education
Teacher and Physical Education Teacher
in
Pre-primary,
Upper
primary,
Secondary, Sr. Secondary or Intermediate
Schools or colleges) Regulation 2014 -
Regulation 4 prescribes graduation in the
subject
as
minimum
educational
qualification for the post of Assistant
Teacher - U.P. Subordinate Educational
(Trained Graduate Grade) Service Rules,
1983, Rule 8(6) - U.P. Subordinate
Education
(Trained Graduates Grade)
Service
(Fourth
Amendment)
Rules,
2016, Rule 8 - educational qualification
for the post of Assistant Teacher (Hindi)
is (i) Bachelor's degree with Hindi and
Intermediate with Sanskrit (ii) B.Ed. -
Grievance of the petitioners was that
they were graduates in Sanskrit and
Hindi & that the respondents cannot deny
eligibility of the petitioners on the ground
that the petitioners are not intermediate
with Sanskrit subject - Held - The point of
dispute is the prescribing of additional
qualification
of
"Intermediate
with
Sanskrit as a subject or equivalent
examination with Sanskrit" under Rule
8(6)(i) - prescribing of Intermediate with
Sanskrit as a subject, in addition to the
minimum qualification prescribed under
Regulation 4 of the NCTE Regulations,
2014 is looking into the syllabus of Class
9th and 10th - the additional qualification
has a direct bearing with the syllabus
prescribed for Class 9th and 10th -
petitioners
who
have
not
passed
Intermediate with Sanskrit as a subject,
but passed the Intermediate with other
subjects and did graduation in Sanskrit,
can not be said to possess higher
qualification as they have not completed
graduation through the channel/faculty
of the prescribed qualification of Sanskrit
as a subject in Intermediate. (Para 24,
20)

B. Civil Law - Constitution of India,1950 -
Article 226 - Judicial Review - Scope -
Qualification for appointment - essential
qualifications for appointment to a post are
for the employer to access, determine and
decide - Court can not in the garb of
judicial review, sit in the chair of the
appointing authority to decide what is best
for the employer - It is for the employer to
determine and decide the relevancy and
suitability of the qualification for any post
and it is not for the court to consider and
assess
it
-
while
prescribing
the
qualifications for a post, the St., as
employer, may legitimately bear in mind
several factors including the nature of the
job, the aptitudes requisite for the efficient
discharge of duties, the functionality of a
qualification and the content of the course
of studies (Para 15, 16)
2 All. Bal Krishana & Ors. Vs. State of U.P. & Ors.
471
C.
Civil
Law
-
Qualification
for
appointment
-
Possession
of
Higher
Qualification
-
Normal
rule
is
that
candidate with higher qualification is
deemed to fulfill the lower qualification
prescribed for a post - But that higher
qualification has to be in the same
channel - Further, this rule will be subject
to an exception - Where the prescription
of a particular qualification is found to be
relevant for discharging the functions of
that post and at the same time, the
Government is able to demonstrate that
for want of said qualification a candidate
may not be suitable for the post, even if
he possesses a "better" qualification but
that
"better"
qualification
has
no
relevance with the functions attached
with the post (Para 19)

D. Civil Law - Interpretation - Principles of
Constitutional Validity
- constitutional
validity of an Act can be challenged only
on two grounds, viz. (i) lack of legislative
competence; and (ii) violation of any of
the Fundamental Rights guaranteed in
Part III of the Constitution or of any other
constitutional provision - In considering
the validity of a Statute the presumption
is always in favour of constitutionality and
the burden is upon the person who attacks
it
to
show
that
there
has
been
transgression of constitutional principles -
For sustaining the constitutionality of an
Act, Court may take into consideration
matters of common knowledge, reports,
preamble, history of the times, object of
the legislation and all the other facts
which are relevant - courts will be
justified in giving a liberal interpretation
in order to avoid constitutional invalidity -
Where a Statute is silent or is inarticulate,
the Court would attempt to transmutate
the inarticulate and adopt a construction
which
would
lean
towards
constitutionality - While examining the
challenge to the constitutionality of an
enactment, the court is to start with the
presumption of constitutionality and try to
sustain its validity to the extent possible
(Para 30)

Dismissed. (E-5)
List of Cases cited:

1. Jai Prakash Yadav & ors. Vs The U.O.I.
&
ors. Writ-A No.11545
of 2018 dt
10.05.2018

2. St. of U.P. & ors. Vs Bhupendra Nath Tripathi
& ors., (2010) 13 SCC 203

3. Dr. Preeti Srivastava & anr. Vs St. of M.P. &
ors., (1999) 7 SCC 120

4. A.P. Cooperative Oil Seeds Growers
Federation Ltd., Hyderabad, Andhra Pradesh Vs
D. Achyuta Rao & ors.

5. Bhupendra Nath Tripathi & ors. Vs St. of U.P.
& ors., (2009) 2 All LJ 401 (FB)

6. St. of U.P. & ors. Vs Bhupendra Nath Tripathi
& ors., (2010) 4 SCC 606

7. St. of Punjab & ors. Vs Anita & ors., (2015) 2
SCC 170

8. Zahoor Ahmad Rather & ors. Vs Sheikh
Imtiyaz Ahmad & ors., (2019) 2 SCC 404

9. Maharashtra Public Service Commission Vs
Sandeep Shriram Warade & ors.(2019) 6
Supreme Court Cases 362

10. Chief Manager, Punjab National Bank &
anr. Vs Anit Kumar Das 2020 SCC OnLine SC
897

11. St. of Punjab & ors. Vs Anita & ors. (2015) 2
SCC 170

12. Zahoor Ahmad Rather Vs Imtiyaz Ahmad
(2019) 2 SCC 404

13. Anant Mills Vs St. of Gujarat reported in AIR
1975 SC 1234

14. Charanjit Lal Choudhary Vs U.O.I. & ors.,
AIR 1951 SC 41

15. U.O.I. Vs Elphinstone Spinning and weaving
Co. Ltd. & ors., AIR 2001 SC 724

16. St. of Bihar & ors. Vs Smt. Charusila Dasi,
AIR 1959 SC 1002
472 INDIAN LAW REPORTS ALLAHABAD SERIES
17. Kedar Nath Singh Vs St. of Bihar, AIR 1962
SC 955

18. Corporation of Calcutta Vs Libery Cinema,
AIR 1965 SC 1107

19. Anandji Haridas and Co. (P) Ltd. Vs S.P.
Kasture and ors., AIR 1968 SC 565

20. Sunil Batra Vs Delhi Administration and ors.,
AIR 1978 SC 1675

21 St. of Bihar Vs Bihar Distilleries, AIR 1997 SC
1511

22. Zameer Ahmad Latifur Rehman Sheikh Vs
St. of Mah. & ors., J.T. 2010 (4) SC 256

23. Greater Bombay Co-operative Bank Ltd. Vs
United Yarn Tex (P) Ltd. & ors., (2007) 6 SCC
236

24. Promoters and Builders Association Vs Pune
Municipal Corporation (2007) 6 SCC. 143

25. Hukum Chand Vs U.O.I., (1972) 2 SCC 601

26. General Officer Commanding-in-Chief Vs
Subhash Chandra Yadav & anr., (1988) 2 SCC
351

27. Additional District Magistrate (Rev.) Delhi
Administration Vs Siri Ram, (2000) 5 SCC 451

28. Sukhdev Singh & ors. Vs Bhagatram Sardar
Singh Raghuvanshi & anr., (1975) 1 SCC 421

29. St. of Karn. & anr. Vs H. Ganesh Kamath &
ors., (1983) 2 SCC 402

30. Kunj Behari Lal Butail & ors. Vs St. of H.P. &
ors., (2000) 3 SCC 40

31. U.O.I. Vs M/s G.S. Chatha Rice Mill, (2021)
2 SCC 21 209

32 Kerala St. Electricity Board & ors. Vs Thomas
Joseph @ Thomas M.J. & ors. and Civil Appeal
Nos.9252-9253 of 2022 dt 16.12.2022

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri T.P. Singh, learned
Senior Advocate, assisted by Sri Satyaveer
Singh, Sri Radha Kant Ojha, learned Senior
Advocate assisted by Sri Lalit Kumar
Pandey, and Sri Ramesh Chandra Tiwari,
learned counsels for the petitioners, Sri
Neeraj
Tripathi,
learned
Additional
Advocate General assisted by Sri Shashank
Shekhar Singh, learned Additional Chief
Standing Counsel for the State-respondents
and Sri Avaneesh Tripathi, learned counsel
for the respondent no. 3 (U.P. Public
Service Commission, Allahabad).

2. With the consent of learned
counsels for the parties WRIT - A No. -
9739 of 2018 is treated as the leading writ
petition and facts thereof are being noted.

3. The reliefs sought in the leading
writ petition is as under :

"A. Issue a writ order or direction in
the nature of mandamus declaring the
impugned rules 8(6) of U.P. Sub-ordinate
Educational (Trained Graduate Grade)
services (4th Amendment) rules 2016 to be
ultra virus to article 40 of the Constitution
of India to an extent that it does prescribed
as one of the qualification of having passed
intermediate with subject Sanskrit one of
the qualification relating to Assistant
Teacher
(Trained
Graduates
Grade)
Subject Hindi.

B. Issue a writ order or direction in
the nature of certiorari calling the record
and quashing impugned advertisement
dated 15.03.2018 being advertisement no.,
-1 / b -1 - / 2018 issued by Secretary U.P.
Public Service Commission, Allahabad to
an extent that it prescribes Sanskrit as a
subject in Intermediate Qualification of
Assistant
Teacher
(Trained
Graduate
Grade) Subject Hindi as provided in
impugned rule 8(6) of U.P. Sub-ordinate
2 All. Bal Krishana & Ors. Vs. State of U.P. & Ors.
473
Educational (Trained Graduate Grade)
services (4th amendment) Rules 2016.
C. Issue a writ order or direction in the
nature
of
mandamus
directing
the
respondents to initiate selection on the post
of Assistant Teacher (Trained Graduate
Grade) Subject Hindi after prescribing
qualification B.A. or equivalent with Hindi
and Sanskrit and B.Ed. not Sanskrit as
subject in intermediate in government inter
college in state of U.P."

Facts :

4. Briefly stated facts of the present case
are that the petitioners claim themselves to
be aspirants to apply in selection of
Assistant
Teachers
(Trained
Graduate
Grade) (Men/Women Branch) Examination
2018, wherein qualification for assistant
teachers (Men/Women Branch) - Hindi, in
brief, has been prescribed as Intermediate
with Sanskrit as one of the subject and
graduation with Hindi and B.Ed. for
appointment as Assistant Teacher for Class
9th and 10th in Government Secondary
Intermediate Schools or Colleges. All the
petitioners claim that they have degree of
graduation with the subject Hindi and
Sanskrit and also have B.Ed. Degree from
recognised Universities but have passed
their intermediate without Sanskrit as a
subject. Since Sanskrit had not been their
one of the subject in Intermedia, therefore,
as per provisions of the U.P. Subordinate
Educational (Trained Graduate Grade)
Services (4th Amendment) Rules 2016,
they are not eligible to apply for the post of
Assistant Teacher (Hindi) for Class 9th and
10th in Government Colleges.

5. According to the petitioners, Rule 8(6)
of
the
Uttar
Pradesh
Subordinate
Educational (Trained Graduate Grade)
Service Rules, 1983 as amended by the 4th
Amendment
Rules
2016
(hereinafter
referred to as the Rules, 1983) providing
for Sanskrit as a subject in Intermediate for
Hindi Teachers for High School (Class 9th
and 10th) is arbitrary, illegal and is in
conflict with the eligibility provided under
the U.P. Intermediate Education Act, 1921
which does not provide Sanskrit as a
mandatory subject in Intermediate for the
post
of
Assistant
Teacher
(Hindi).
Consequently the petitioners have filed the
present writ petitions praying to declare the
impugned Rules 8(6) of the amended Rules
1983 to be viloative of Article 14 of the
Constitution of India to the extent it
prescribes
Sanskrit
as
a
subject
in
Intermediate as one of the qualification for
the post of Assistant Teachers (Hindi) and
the consequent Advertisement No.A-I/E1/2018, dated 15.03.2018 issued by the
Secretary U.P. Public Service Commission
Allahabad. They have also sought a writ,
order or direction in the nature of
mandamus to the respondents to initiate
selection on the post of Assistant Teachers
(Trained Graduate Grade) Subject - Hindi
by deleting Sanskrit as one of the subject in
Intermediate.

Submissions
on
behalf
of
the
Petitioners

6. Learned counsel for the petitioners
submit as under :-

(i) Qualification prescribed under the
Uttar Pradesh Sub-ordinate Educational
(Trained Graduate Grade) Services Rules,
1983 (hereinafter referred to as "Rules,
1983") enacted by the State Government in
exercise of powers conferred under the
proviso to Article 309 of the Constitution of
India, as amended by the 4th amendment
Rules, 2016, providing for academic
qualification for the post of Assistant
474 INDIAN LAW REPORTS ALLAHABAD SERIES
Teachers (Men / Women) (Hindi), is in
conflict with Appendix-A (Regulation I)
Chapter
II
framed
under
the
U.P.
Intermediate
Education
Act,
1921
(hereinafter referred to as the "Act, 1921")
and the Regulation 4 of the National
Council
for
Teachers
Education
(Determination of Minimum Qualifications
for Recruitment of Teachers in Schools)
Regulations 2001) (hereinafter referred to
as NCTE Regulation, 2001), inasmuch as
the Rules 1983 prescribes qualification for
Assistant Teacher (Hindi) to be (I)
Bachelor's Degree with Hindi as a
subject from a recognized University in
India and Intermediate with Sanskrit as
a subject or equivalent examination with
Sanskrit and (II) B.Ed. or equivalent
degree from a recognized University in
India, whereas the regulations framed
under the Act, 1921 provides academic
qualification for Hindi Teacher to be
graduation in Hindi and Sanskrit and the
NCTE
regulation
provides
graduate/postgraduate
as
academic
qualification for Assistant Teacher (Hindi)
to be minimum educational qualification.
Therefore, the petitioners who are graduate
in Sanskrit and Hindi both, possesses the
required academic qualification for the post
of Assistant Teacher (Hindi). Thus, the
Rules 1983 providing for graduation in
Hind with Sanskrit in Intermediate as a
subject, is in conflict with the aforesaid
regulations framed under the Act 1921
and
NCTE
regulations,
2001.
Consequently it being conflict with the
regulations, is not a valid piece of
legislation.

(ii) The petitioners have applied for
the post of Assistant Teacher (Hindi) in
Government owned Schools / Colleges for
which the academic qualification has been
provided in the Rules 1983, whereas the
academic qualification for aided Colleges is
provided in the regulations framed under
the
Act
1921.
The
qualification
prescribed under the Rules 1983 is not
based on any reasonable classification,
therefore, the relevant provision under the
Rules,
1983
prescribing
academic
qualification for Assistant Teacher (Hindi)
is violative of Article 14 of the Constitution
of India.

(iii) Even if it assumed that the State
Government
can
lawfully
prescribed
academic qualification for the post of
Assistant Teacher, despite it having been
provided under the NCTE Regulation 2001,
yet the State Government can only
prescribe higher qualification than as
provided under the NCTE Regulations,
2001. Providing for qualification of
Intermediate in Sanskrit would be a
lower qualification. Therefore, to this
extent the Rules 1983 as amended by the
4th Amendment Rules 2016 is ultra vires
to the NCTE Regulations 2001.

(iv) Different academic qualification
has been prescribed by the regulations
framed under the Act, 1921 for NonGovernment aided institutions and under
the 4th Amendment Rules, 2016 for
Assistant Teacher (Hindi) in Government
institution whereas the pay scale and the
service benefits of Government and
aided
Non-Government
Schools
Assistant Teachers are at par. Syllabus
etc. of both types of schools are governed
by the provisions of Act, 1921. Thus, the
4th Amendment Rules, 2016 is clearly
discriminatory. Assistant Teacher (Hindi)
teaching in Government Schools or NonGovernment aided schools are teaching one
and the same syllabus to students. The
judgement of Hon'ble Supreme Court in the
case of Zahoor Ahmad Rather and others
vs. Sheikh Imtiyaz Ahmad and others,
(2019) 2 SCC 404 as may be relied by the
State respondents is clearly distinguishable
2 All. Bal Krishana & Ors. Vs. State of U.P. & Ors.
475
inasmuch as it relates to some training
course.

7. In support of their submissions of
learned counsel for petitioners have relied
upon the following judgements :-

i. Judgement dated 10.05.2018 in
Writ-A No.11545 of 2018 (Jai Prakash
Yadav and 46 others vs. The Union of
India and 4 others).

ii. State of Uttar Pradesh and others
vs. Bhupendra Nath Tripathi and others,
(2010) 13 SCC 203.

Submissions
on
behalf
of
the
respondents

8. Sri Neeraj Tripathi, learned
Additional Advocate General, submits as
under :-

(i)
Academic
Qualification
prescribed for Class 9th and 10th of the
Government institutions under the U.P.
Intermediate Education Act, 1921, the
regulations were amended on 04.05.2016
prescribing qualification similar to the
qualification prescribed under the Rules
1983 as amended by the 4th amendment
Rules 2016 for non Government aided
Schools/Colleges. Therefore, there is
absolutely no difference between the
academic qualification prescribed for
recruitment of Assistant Teacher in
Government
Colleges
and
aided
Schools/Colleges. Now both academic
qualification stands at par. Therefore,
there is no discrimination.

(ii) The State may prescribe any
additional qualification in addition to
the qualifications prescribed under the
NCTE
Regulation,
2014.
Therefore,
prescribing Intermediate with Sanskrit
Subject in addition to the graduation in
(Hindi) by the 4th amendment Rules,
2016, is not in conflict with the NCTE
Regulation, 2014. Reliance is placed
upon the judgement of Hon'ble Supreme
Court in Dr. Preeti Srivastava and
another vs. State of M.P. and others,
(1999) 7 SCC 120 (Paragraphs 35 to
38),
A.P.
Cooperative
Oil
Seeds
Growers
Federation
Limited,
Hyderabad, Andhra Pradesh vs. D.
Achyuta Rao and others (Paragraph
41), Bhupendra Nath Tripathi and
others Vs. State of U.P. and others,
(2009) 2 All LJ 401 (FB), State of U.P.
and
others
Vs.
Bhupendra
Nath
Tripathi and others, (2010) 4 SCC 606.

(iii) As per syllabus provided in the
advertisement No. A-1/E-1/2018 dated
15.03.2018, for subject (Hindi), Sanskrit
Sahitya is included which indicates
imparting of education of elementary
Sanskrit
to
Class
9th
and
10th
Students. The petitioners who are not
intermediate with Sanskrit but have
graduated in Sanskrit are not suitable to
impart education of elementary Sanskrit
required in the syllabus .

(iv) The impugned rules are neither
arbitrary nor violative of Article 14 of the
Constitution of India nor is in conflict
with the regulation framed under the Act,
1921 nor in conflict with the NCTE
Regulation, 2014.

(v) Candidates not possessing the
prescribed
academic
qualification
but
possessing higher qualification, cannot be
held to be eligible candidate unless, the
rules prescribes that a candidate possessing
higher qualifications would be eligible.
Reliance is placed upon the judgements of
Hon'ble Supreme Court in the case of State
of Punjab and others vs. Anita and
others, (2015) 2 SCC 170 (Paragraphs 7
to 16) and Zahoor Ahmad Rather and
others vs. Sheikh Imtiyaz Ahmad and
476 INDIAN LAW REPORTS ALLAHABAD SERIES
others, (2019) 2 SCC 404 (Paragraphs
23, 25, 26 and 27).

9. Sri Avaneesh Tripathi, learned
counsel for Public Service Commission
supports the submissions advanced by
learned Additional Advocate General.

Discussion and Findings

10. Before we proceed to consider the
rival submissions of learned counsels for
the parties, it would be appropriate to
reproduce relevant portion of Rule 8(6) of
the Amended Rules 1983, as under :-

"8.
Academic
qualification. -
A
candidate for direct recruitment to the
various posts in the service must possess
the following qualifications or as specified
by the Government from time to time -

(6)
Assistant
Teacher
(Men/Wom
en) Hindi
(I) Bachelor's degree
with Hindi as a subject
from
a
recognised
University in India and
Intermediate
with
Sanskrit as a subject or
equivalent examination
with
Sanskrit.
(ii)B.Ed. or equivalent
degree
from
a
recognised University in
India.

"

11. In paragraph 4 of the short counter
affidavit, the respondent no.6 i.e. the
National Council for Teachers Education,
(for short NCTE) has stated that in exercise
of powers conferred under Clause (dd) of
sub section (2) of Section 33 read with
Section 12 A of the National Council for
Teachers Education Act 1993 and in super
session of the National Council for
Teachers
Education
(determination
of
minimum qualification for recruitment of
teachers in schools) Regulations 2001 the
NCTE has framed "The National Council
for Teachers Education (determination of
minimum qualification for persons to be
recruited as education teachers and physical
education teachers in pre-primary, primary,
upper primary, secondary, senior secondary
or Intermediate schools or colleges )
Regulation 2014 (hereinafter referred to as
"the NCTE Regulations 2014).

12. Regulation 4, Clause 4 of the 1st
Schedule of the NCTE Regulations, 2014
provides as under :

"4. Qualification for Recruitment - The
qualifications for recruitment of teachers in any
recognized school imparting Pre-primary,
Primary, Upper Primary, Secondary, Senior
Secondary or Intermediate Schools or Colleges
imparting senior secondary education shall be
as given in the First and Second Schedule(s)
annexed to these Regulations.

(b) For promotion of teachers the
relevant minimum qualifications as specified
in the First and Second Schedule(s) are
applicable for consideration from one level to
the next level.

4.Secondary/
High
School
(For
Classes
IX-X)
(a)
Graduate/Post
Graduate from recognized
University with at least
50%
marks
in
either
Graduation
or
Post
Graduation
(or
its
equivalent) and Bachelor
of Education. (B.Ed) from
National
Council
for
Teacher
Education
recognized institution.
Or
2 All. Bal Krishana & Ors. Vs. State of U.P. & Ors.
477
(b)
Graduate/Post
Graduate from recognized
University with at least
45%
marks
in
either
Graduation
or
Post
Graduation
(or
its
equivalent) and Bachelor
of Education (B.Ed.) from
National
Council
for
Teacher
Education
recognized institution {in
accordance
with
the
National
Council
for
Teacher
Education
recognized
institution
(Form of application for
recognition, the time limit
of
submission
of
application, determination
of norms and standards for
recognition
of
teacher
education programmes and
permission to start new
course
or
training)
Regulations, 2002 notified
on
13.11.2002
and
National
Council
for
Teacher
Education
(Recognition Norms and
Procedure)
Regulations,
2007
notified
on
10.12.2007}
Or
(c)
4-years
degree
of
B.A.Ed/B.Sc.Ed. from any
National
Council
for
Teacher
Education
recognized institution.
"

13. Syllabus of Hindi Subject for
Class 9th and Class 10th as prescribed by
the U.P. Secondary Education Board
includes
a
little
elementary
Sanskrit
relating to Sanskrit Grammer, translation
from Sanskrit to Hindi and two questions to
be answered in Sanskrit. The syllabus of
Class 11th and 12th of Sanskrit subject
prescribed by the U.P. Secondary Education
Board are reproduced below :

"सोंस्कृत

कक्षा-11

खण्ड-क(गद्य)

चन्द्रापीडकथा

(साहां दपिृभवने बालिया .................. सवष
रमणीयकानाम्
एकदनवासभूिाम्,
कािम्बरीां
ििशष)

खण्ड-ख (पद्य)

रधुवांशमहाकाव्यम् (दद्विीय सगष)

(श्लोक सांख्या 27 से 40 िक)

खण्ड-च (व्याकरण)

कारक एवां दवभस्ि- दद्विीय दवभस्ि-
अदधशीङस्थासा कमष, कालाध्वनोरत्यन्तसांयोगे।

स्र
सस्न्ध-
एदङपररूपम्,
एङःपिान्तािदप।

शब्दरूप- पुस्ल्लगां- भगवि्, कररन्, पदि,
सस्ख चन्द्रमस्।

स्त्रीदलांग- वाच्, सररि्, श्री, स्त्री, अप्।

धािुरूप- परस्मैपि-अस्, नश्, आप्, शक्,
इर््, कृर््।

कक्षा-12

खण्ड क-(गद्य)

चन्द्रापीडकथा

दनगषिायाां
केयूरकेण
सह
.............
आनन्दस् अध्यगच्छन्।

खण्ड-ख (पद्य)

रधुवांशमहाकाव्यम् (दद्विीय सगष)

श्लोक सांख्या 65-75 िक।

खण्ड-च (व्याकरण)

कारक एवां दवभस्ि- चिुथी दवभस्ि
स्पृहेरीस्ििः,
पांचमी
दवभस्ि-
जुगुिादवरामप्रमािाथाषनामुपसांख्यानम् (वा०)।,
478 INDIAN LAW REPORTS ALLAHABAD SERIES

आख्यािोपयोगे। र्ष्ठी दवभस्ि- िस् च
विषमाने, र्ष्ठी चानािरे। सप्तमी दवभस्ि-
साध्वसाधुप्रयोगे च (वा०)

व्यांजन सस्न्ध- झलाां जश् झदश, िोदलष,
अनुस्ारस् यदय परसवणषः।

दवसगष सस्न्ध- अिोरोरप्लुिापप्लुिे, वा शरर,
रोरर, ढरलोपे पूवषस् िीघो∙णः।

शब्द रूप- नपुांसकदलांग- जगि्, ब्रह्मन्,
धनुर्।

सवषनाम- इिम्, अिस्।

धािुरूप- आत्मनेपि- भार््, दवि्।

उभयपि- चुर, दश्र, क्री, धा। "

14. Graduation course in Sanskrit
includes a higher standard of Sanskrit but
does not include the course of Sanskrit
included in the syllabus of Hindi subject for
class 9th and 10th. Assistant Teachers
(Men/Women) - Hindi have to teach students
of Class 9th and 10th a little elementary
Sanskrit. Therefore, for efficient discharge of
duties, the functionality of qualification,
contents of the course of studies and the
functions attached with post is relevant.
Therefore, looking into the syllabus of Class
9th and 10th for Hindi subject, the State
Government in its wisdom and on due
consideration
of
relevant
aspects,
has
prescribed certain academic qualification
under Rule 8(6) of the Rules, 1983 for
Assistant Teacher (Hind) includig "bachelor's
degree with Hindi as a subject from a
recognised
University
in
India
and
intermediate with Sanskrit as a subject or
equivalent examination with Sanskrit and
B.Ed.". Thus, looking into the syllabus of
Class 9th and 10th graduation in Hindi has
been prescribed as academic qualification for
the post of Assistant Teacher (Men/Women) -
Hindi.

15. It is settled law that essential
qualifications for appointment to a post are
for the employer to access, determine and
decide. Court can not in the garb of judicial
review, sit in the chair of the appointing
authority to decide what is best for the
employer. It is for the employer to
determine and decide the relevancy and
suitability of the qualification for any post
and it is not for the court to consider and
assess it. A greater latitude is permissible
for the State Government to prescribe
qualification for the post of Assistant
Teachers but it should not be repugnant to
the NCTE Regulations, 2014. The view
taken by us is also supported by the law
laid down by Hon'ble Supreme Court in
Maharashtra Public Service Commission
Vs. Sandeep Shriram Warade and
others(2019) 6 Supreme Court Cases 362
(para
9),
Chief
Manager,
Punjab
National Bank and another Vs. Anit
Kumar Das 2020 SCC OnLine SC 897
(para 21) and State of Punjab and others
Vs. Anita and others (2015) 2 SCC 170
(para 14).

16. It is settled law that while while
prescribing the qualifications for a post, the
State, as employer, may legitimately bear in
mind several factors including the nature of
the job, the aptitudes requisite for the
efficient
discharge
of
duties,
the
functionality of a qualification and the
content of the course of studies. Reference
in this regard may be had to the judgment
of Hon'ble Supreme Court in the case of
Zahoor Ahmad Rather Vs. Imtiyaz
Ahmad (2019) 2 SCC 404 (para 27).

17.

Therefore,
the
prescribed
academic qualification in question can not
be said to be arbitrary or based on
irrelevant consideration.

18. So far as question of higher
qualification is concerned, we are of the
2 All. Bal Krishana & Ors. Vs. State of U.P. & Ors.
479
view that normal rule to the concept of
"Higher Qualification" is that candidature
of
a
candidate
possessing
higher
qualification can not be rejected on that
basis but that higher qualification must
be through the channel/faculty of the
prescribed qualification.

19. Therefore, the petitioners who
admittedly passed Intermediate without a
subject of Sanskrit, can not be said to
possess a higher qualification only because
they have graduated in Sanskrit subject,
since they do not possesses graduation
degree
in
Sanskrit
through
the
channel/faculty
of
the
prescribed
qualification of Sanskrit as a subject in
Intermediate. The view taken by us is also
supported by the law laid down by Hon'ble
Supreme Court in the case of State of
Uttarkhand
and
others
Vs.
Deep
Chandra Tewari and another (2013) 15
SCC 557, wherein Hon'ble Supreme Court
considered
the
concept
of
higher
qualification (paras 11and 12) and held as
under :

"11. We are conscious of the principle
that when particular qualifications are
prescribed for a post, the candidature of a
candidate possessing higher qualification
cannot be rejected on that basis. No doubt,
normal rule would be that candidate with
higher qualification is deemed to fulfill the
lower qualification prescribed for a post.
But that higher qualification has to be in the
same channel. Further, this rule will be
subject
to
an
exception. Where
the
prescription of a particular qualification is
found to be relevant for discharging the
functions of that post and at the same time,
the Government is able to demonstrate that
for want of said qualification a candidate
may not be suitable for the post, even if he
possesses a "better" qualification but that
"better" qualification has no relevance with
the functions attached with the post.

12. In the present case, we find the
situation falling in this excepted category. As
pointed out above, the Assistant Teacher is
meant to impart education to students at
primary level. For teaching primary students,
subjects studied while doing basic B.Ed.
Degree would be relevant and appropriate.
For teaching such students, B.Ed. with
Specialisation in vocational education would
be of no use as those students are not
imparted vocational education, which is the
thrust in the degree obtained by the
respondents herein. In the instant case,
proficiency in the basic subjects taught at
primary level is required and thus vocational
training would not serve any purpose. Thus,
when we find that in the instant case,
essential education qualification is B.Ed.
Degree which is prescribed in the relevant
rules, having statutory flavour, the action of
the Government cannot be faulted with, in
rejecting the candidature of the respondents
because of the reason that they do not have
the qualification, as mentioned in the
advertisement viz. B.Ed. Degree simpliciter."

(Emphasis supplied by me)

20. In view of the discussions made
above, we hold that the petitioners who
admittedly have not passed Intermediate
with Sanskrit as a subject, but passed the
Intermediate with other subjects and did
graduation in Sanskrit, can not be said to
possess higher qualification as they have
not completed graduation through the
channel/faculty
of
the
prescribed
qualification of Sanskrit as a subject in
Intermediate.

Whether
academic
qualification
prescribed under Rule 8(6) of the Rules
1983
for
Assistant
Teachers
(Men/Women) Hindi for Class 9th and
480 INDIAN LAW REPORTS ALLAHABAD SERIES
10th of Government Schools/Colleges, is
different from the academic qualification
provided for aided Schools/Colleges for
Class 9th and 10th in Appendix-A of
Chapter II of the Regulations framed
under the U.P. Intermediate Education
Act, 1921 ?

21. We have already reproduced in para
12 above the academic qualification for
Assistant Teachers Class 9th and 10th for
Government Schools/Colleges under Rule
8(6) of the Rules 1983. Earlier Sanskrit as a
subject in intermediate was not provided in
the Regulation framed under the Act, 1921.
After Rule 8 of the Rules 1983 was amended
by the 4th Amendment Rules, 2016,
simultaneously the Appendix-A of Chapter II
of the Regulation framed under the Act, 1921
was also amended and Sanskrit as a subject in
intermediate or equivalent examination, was
provided
as
an
essential
academic
qualification for appointment of Assistant
Teachers in High School (Class 9th and
10th), by notification No.Parishad - 9/133
dated 04.05.2016. Thus, the submissions of
learned counsels for the petitioners that
Sanskrit as a subject in intermediate has not
been prescribed in the academic qualification
for Assistant Teachers (Hindi) in aided
Schools/Colleges under Chapter II of the
Regulations framed under the Act, 1921, is
totally groundless. Therefore, the submission
deserves to be rejected and is hereby rejected.
That apart, the teachers of Government
Colleges and teachers of private/aided
Colleges are two different class, and both are
governed by different sets of rules. Therefore,
the academic qualification provided in
Chapter II of the regulations framed under the
Act, 1921 is not even relevant for the
purposes of the Rules, 1983.

Whether there is conflict between
the prescribed minimum qualification
for teachers by NCTE and the academic
qualification prescribed under Rule 8(6)
of the Rules 1983 ?

22. By virtue of the Constitution 42nd
Amendment
Act,
1976,
the
subject
'Education' was withdrawn from Entry II
(List-II) - State List, and was placed in
Entry 25 of List-III - Concurrent List. Thus
the Legislative Competence to legislate on
the subject "Education" was brought under
the Concurrent List. In view of the
provisions of Article 246 (2) of the
Constitution of India, notwithstanding
anything in clause (3), the Parliament, and,
subject to clause (1), the Legislature of any
State also, have power to make laws with
respect to any of the matters enumerated in
List III in the Seventh Schedule. The
Parliament enacted The National Council
for Teacher Education Act, 1993 (No.73 of
1993) (hereinafter referred to as 'the
Central Act 1993') to provide for the
establishment of a National Council for
Teacher Education with a view to achieve
planned and co-ordinated development of
the teacher education system throughout
the
country,
regulation
and
proper
maintenance of norms and standards in the
teacher education system and for matters
connected therewith. Section 12A of the
Central Act, 1993 as inserted by Act No.18
of
2011
dated
12.10.2011
w.e.f.
01.06.2012, confers power upon the NCTE
to
determine
minimum
standards
of
education of school teachers which is
reproduced below:

"12A. 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-
2 All. Bal Krishana & Ors. Vs. State of U.P. & Ors.
481
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 schools or
colleges, under any rule, regulation or
order made by the Central Government, a
State Government, a local or other
authority,
immediately
before
the
commencement of the National Council for
Teacher Education (Amendment) Act, 2011
solely on the ground of non-fulfilment 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)."

23. Relevant portion of the minimum
standard of education as prescribed by the
NCTE has already been reproduced in
paragraph 12 above.

24. Rule 8(6) of the Rules, 1983 has
prescribed
qualification
for
Assistant
Teacher (Men/Women) - Hindi, to be
Bachelor's degree with Hindi. Thus, to this
extent there is no conflict between the
aforequoted NCTE Regulations and Rule
8(6) of the Rules, 1983. The point of
dispute is the prescribing of additional
qualification of "Intermediate with Sanskrit
as a subject or equivalent examination with
Sanskrit" under Rule 8(6)(i). Thus, the
prescribing of Intermediate with Sanskrit as
a subject, is in addition to the minimum
qualification prescribing under Regulation
4 of the NCTE Regulations, 2014 looking
into the syllabus of Class 9th and 10th. This
additional qualification has a direct bearing
with the syllabus prescribed for Class 9th
and 10th. Therefore, we hold that there is
no conflict between the Rule 8(6) and
Regulation 4 of the NCTE Regulations,
2014.

25. The submissions of the petitioners
with reference to the academic qualification
prescribed in regulations framed under the
U.P. Intermediate Education Act, 1921, has
no substance. This aspect of the matter was
considered by a coordinate Bench of this
Court in Writ A No.11545 of 2018 Jai
Prakash Yadav And 46 Others Vs. The
Union Of India And 4 Others, decided on
10.05.2018 and after referring to various
provisions
of
the
U.P.
Intermediate
Education Act, 1921, The Uttar Pradesh
Secondary Education Services Selection
Board Act, 1982, it has been held as under :

"On
conjoint
reading
of
the
Intermediate Act, Act 1982 and the Rules
and
Regulations
framed
thereunder,
selection of teachers against substantive
vacancy of private and aided schools is
exclusively within the domain of the
Selection Board. The selection of teachers
for government high school/intermediate
schools is with the government which is
outside the purview of the Selection
Board."

26. Thus, the selection of teachers for
Government
High
School/Intermediate
Schools is with the State Government and
in this regard the Rules, 1983 prescribing
minimum
qualification
for
Assistant
Teacher
in
Government
High
School/Intermediate Schools, has been
482 INDIAN LAW REPORTS ALLAHABAD SERIES
enacted which holds the field and the
academic
qualification
prescribed
thereunder shall continue to hold good until
it
is
repugnant
to
the
qualification
prescribed by the NCTE regulations. In the
present set of facts we have already held
that the academic qualification prescribed
under Rule 8(6) of the Rules, 1983 is not
repugnant or in conflict with the academic
qualification prescribed under Regulation 4
of the NCTE Regulations, 2014. Thus, the
submissions of the petitioners taking shelter
of the regulation framed under the U.P.
Intermediate Education Act, 1921, deserves
to be rejected and is hereby rejected.

Presumption
of
Constitutional
Validity

27. In the case of Anant Mills Vs.
State of Gujarat reported in AIR 1975
SC 1234 (para 20), the Hon'ble Supreme
Court has held that :-

"20. There is a presumption of the
constitutional
validity
of
a
statutory
provision. In case any party assails the
validity of any provision on the ground that it
is violative of Article 14 of the Constitution, it
is for that party to make the necessary
averments and adduce material to show
discrimination violative of Article 14. No
averments were made in the petitions before
the High Court by the petitioners that the
assessments before the coming into force of
Ordinance 6 of 1969 bad been made by
taking into account the rent restriction
provisions
of
the
Bombay
Rent
Act.
Paragraph 2B and some other paragraphs of
petition No. 233 of 1970 before the High
Court, to which our attention was invited by
Mr.