# Bharat Singh and others v. District Basic Shiksha Adhikari, Bijnor and others

- **Citation:** (2012) 3 ILRA 1338
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-12
- **Case number:** Civil Misc. Writ Petition No. 35608 of 1997
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bharat-singh-and-others-v-district-basic-shiksha-adhikari-bijnor-and-others-42402
- **Pages:** 6

## Headnote

Order
dated
06.09.1994 provided that those Assistant
Teachers, who have completed ten years'
of continuous service in a recognized
institution shall be entitled for exemption
from BTC training. The said Government
Order provided that separate order of
exemption be issued in respect of the
Teachers concerned by the competent
authority. In pursuance of the aforesaid
Government Order, the petitioners have
been exempted from BTC training by
orders dated 28.02.1995, 10.03.1995 and
04.04.1995 respectively;

(ii) State Government under Section
19 of U.P. Basic Education Act, 1972 has
power to make rules in respect of the
condition of service of teachers to be
appointed under the Act. In exercise of
power under Section 19 of the Act, the
respondents have framed the U.P. Basic
Education
(Teachers)
Service
Rules,

## Text

1338 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2012

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 35608 of 1997

Bharat Singh and others
 ...Petitioner
Versus
District Basic Shiksha Adhikari, Bijnor
and others

 ...Respondents

Counsel for the Petitioner:
Sri V. Singh
Sri J.P.S. Chauhan
Sri Vivik Saran
Sri Abishek Srivastava
Sri Prasoon Tiwari

Counsel for the Respondents:
Sri P.D. Tripathi
S.C.

U.P. Basic Education Act 1972-Rule-8Exemption from B.T.C. Training-granted
to those teachers who had completed 10
years
continuous
service
as
per
Government Order-can not be made
applicable-with
regards
to
fresh
appointment-no relief for exemption can
be
granted
contrary
to
statutory
provisions-petition dismissed.

Held: Para-7

This government Order does not apply to
the fresh appointment. In the case of
fresh appointment, it is always open to
the employer to fix the qualification. The
qualification for the assistant teacher for
Basic Education is provided under Rule 8
of Rules, 1981. There is neither any
Government Order nor any notification
relaxing such qualification provided in
Rule 8. The qualification mentioned in
the advertisement is in consonance with
qualification
provided
in
Rule
8.
Therefore, the submission of learned
counsel for the petitioner that the
exemption from BTC training granted in
pursuance of the Government Order
dated
06.09.1994
should
also
be
considered
for
the
purposes
of
advertisement dated 31.08.1997 has no
substance.
Case Law discussed:
(2010) 8 SCC 701 (Para 36); J.T. 1994 (4) SC
532

(Delivered by Hon'ble Rajes Kumar, J.)

1. All the petitioners passed
Intermediate examination conducted by
U.P. Board. The petitioner nos.1 and 2 are
of OBC category and petitioner nos.3 and
4 are of General Category. All the
petitioner were appointed as Assistant
Teachers on 01.07.1984 in Indira Shishu
Niketan Noorpur, Bijnor, a recognized
primary institution by U.P. Basic Shiksha
Parishad. They have completed their ten
years service in the said institution on
01.07.1994. The State Government issued
Government Order on 06.09.1994 and in
compliance thereof the Director of
Education passed an order on 30.09.1994
by which it was directed that all those untrained teachers working in a recognized
institution of the Basic Shiksha Parisiad
would be entitled for exemption from
BTC training on completion of ten years
service in a recognized institution of
Basic Shiksha Parishad. In compliance of
the said Government Order and the order
of Director Education, the respondent
no.3 by order dated 28.02.1995 has
granted exemption to the petitioner nos.1
and 3 from BTC training from 01.07.1994
and by his order dated 10.03.1995 has
granted exemption to the petitioner no.2
and by his order dated 04.04.1995 has
granted exemption to the petitioner no.4
from BTC training from 01.07.1994.
3 All] Bharat Singh and others V. District Basic Shiksha Adhikari, Bijnor and others
1339

2. The Director of Education by
order dated 30.10.1995 has clarified that
all those Assistant Teachers, who are
working in a recognized institution of
Basic Shiksha Parisahd would be entitled
for exemption from BTC training and
they would be entitled for all benefits of
BTC training and entitled for the benefit
of BTC training available to the working
BTC trained teachers.

3. It appears that for the post of
Assistant Teachers an advertisement was
issued on 17.08.1997. The petitioners
applications for Assistant Teacher under
the aforesaid advertisement have not been
considered.
Being
aggrieved,
the
petitioners filed the present writ petition
seeking direction to the respondent no.1
to consider the case of the petitioners for
appointment on the post of Assistant
Teachers
in
respect
of
which
advertisement
has
been
made
on
17.08.1997 and for direction to the
respondent no.1 to treat the petitioners at
par with BTC trained persons on
01.07.1994 in view of the Government
Order dated 06.09.1994 issued by the
State Government and the order dated
30.09.1994 and 30.10.1995 issued by
Director of Education. This Court has
directed to the respondent no.1 to file
counter affidavit and as an interim
measure
the
petitioners
have
been
permitted to appear for selection to the
post of Assistant Teachers in Junior Basic
Schools run by U.P. Basic Shiksha
Parishad but their result shall not be
declared till further orders. Counter and
rejoinder affidavits have been exchanged.

4. Heard Sri Vivek Saran, Advocate
holding brief of Sri Abhishek Srivastava,
learned counsel for the petitioner and Sri
P.D.Tripathi, learned counsel appearing
on behalf of Basic Shiksha Parishad and
learned Standing Counsel appearing on
behalf of respondent no.3.

5.

Learned
counsel
for
the
petitioners submitted that :

(i)
Government
Order
dated
06.09.1994 provided that those Assistant
Teachers, who have completed ten years'
of continuous service in a recognized
institution shall be entitled for exemption
from BTC training. The said Government
Order provided that separate order of
exemption be issued in respect of the
Teachers concerned by the competent
authority. In pursuance of the aforesaid
Government Order, the petitioners have
been exempted from BTC training by
orders dated 28.02.1995, 10.03.1995 and
04.04.1995 respectively;

(ii) State Government under Section
19 of U.P. Basic Education Act, 1972 has
power to make rules in respect of the
condition of service of teachers to be
appointed under the Act. In exercise of
power under Section 19 of the Act, the
respondents have framed the U.P. Basic
Education
(Teachers)
Service
Rules,
1981. Rule 8 of the said Rules provide the
academic qualifications for appointment.
Rule 10 gives power of relaxations for a
particular
class.
The
qualification
provided
in
advertisement
dated
31.08.1997 was with reference to the Rule
8.
The
exemption
granted
to
the
petitioners should be treated in exercise of
power under Rule 10 and also for the
purposes
of
advertisement
dated
31.08.1997;

(iii) The Apex Court has held that the
Government Order should be read in plain
and
simply
language
in
order
to
1340 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
understand its meaning and intention.
Reliance is placed on the decision in the
case of Bhakka Beas Management
Board Vs. Krishan Kumar Vij and
another, reported in (2010) 8 SCC, 701.
(Para 36).

6. Learned counsel appearing on
behalf of the Basic Shiksha Parishad
submitted that the exemption from BTC
training provided to the petitioners under
the Government Order dated 06.09.1994
was only for the limited purposes to
regularise their services in the institution
even in the absence of BTC training but it
does not apply to the fresh appointment
by
the
advertisement.
Unless
the
candidate
fulfils
the
qualifications
mentioned in the advertisement, which is
also required under Rule 8, they are not
eligible to apply for the post and can not
be considered.

7. I have considered the rival
submissions and perused the record.

8.

Government
Order
dated
06.09.1994 was only to regularize the
services of those teachers who were
already working and the exemption from
BTC training has been granted only to
those teachers, who have completed ten
years
continuous
service.
This
government Order does not apply to the
fresh appointment. In the case of fresh
appointment, it is always open to the
employer to fix the qualification. The
qualification for the assistant teacher for
Basic Education is provided under Rule 8
of Rules, 1981. There is neither any
Government Order nor any notification
relaxing such qualification provided in
Rule 8. The qualification mentioned in the
advertisement is in consonance with
qualification
provided
in
Rule
8.
Therefore, the submission of learned
counsel for the petitioner that the
exemption from BTC training granted in
pursuance of the Government Order dated
06.09.1994 should also be considered for
the purposes of advertisement dated
31.08.1997 has no substance.

9. In the case of Tata Cellular v
Union of India, reported in J.T. 1994 (4)
SC 532, the Apex Court has held that
there should be judicial restraint in
administrative decision. This principle
will apply all the more to a Rule under
Article 309 of the Constitution of India.

10. In the case of Dilip Kumar Garg
and another vs. State of U.P. and others
(supra), the Apex Court has held that
Article 14 should not be stretched too far,
otherwise it will make the functioning of
the
administration
impossible.
The
administrative authorities are in the best
position
to
decide
the
requisite
qualifications for promotion from Junior
Engineer to Assistant Engineer and it is
not for this Court to sit over their decision
like a Court of Appeal. The administrative
authorities
have
experience
in
administration, and the Court must respect
this, and should not interfere readily with
administrative decisions.

11. In the case of Union of India vs.
Pushpa Rani and others (Supra), the
Apex Court has held as follows:

"Before parting with this aspect of
the case, we consider it necessary to
reiterate the settled legal position that
matters relating to creation and abolition
of
posts,
formation
and
structuring/restructuring
of
cadres,
prescribing
the
source/mode
of
recruitment and qualifications, criteria of
3 All] Bharat Singh and others V. District Basic Shiksha Adhikari, Bijnor and others
1341
selection, evaluation of service records of
the employees fall within the exclusive
domain of the employer. What steps
should be taken for improving efficiency
of the administration is also the preserve
of the employer. The power of judicial
review can be exercised in such matters
only if it is shown that the action of the
employer is contrary to any constitutional
or statutory provision or is patently
arbitrary or is vitiated due to malafides.
The Court cannot sit in appeal over the
judgment of the employer and ordain that
a particular post be filled by direct
recruitment or promotion or by transfer.
The Court has no role in determining the
methodology of recruitment or laying
down the criteria of selection. It is also
not open the Court to make comparative
evaluation of the merit of the candidates.
The Court cannot suggest the manner in
which the employer should structure or
restructure the cadres for the purpose of
improving efficiency of administration."

11. In the case of State of M.P. and
others vs. Raghuveer Singh Yadav and
others (supra), the Apex Court has held as
follows:

"It is not in dispute that Statutory
Rules have been made introducing Degree
in Science or Engineering or Diploma in
Technology
as
qualifications
for
recruitment to the posts of Inspector of
Weights and Measures. It is settled law
that the State has got power to prescribe
qualifications for recruitment. Hear is a
case that pursuant to amend Rules, the
Government has withdrawn the earlier
notification and wants to proceed with the
recruitment afresh. It is not a case of any
accrued right. The candidates who had
appeared for the examination and passed
the
written
examination
had
only
legitimate expectation to be considered of
their claims according to the rules then in
vogue. The amended Rules have only
prospective operation. The Government is
entitled
to
conduct
selection
in
accordance with the changed rules and
make final recruitment. Obviously no
candidate acquired any vested right
against the State. Therefore, the State is
entitled to withdraw the notification by
which
it
had
previously
notified
recruitment and to issue fresh notification
in that regard on the basis of the amended
Rules."

12. In the case of V.K. Sood vs.
Secretary, Civil Aviation and others
(supra), the Apex Court has held as
follows:

"Thus it would be clear that, in the
exercise of the rule making power, the
President or authorized person is entitled
to prescribe method of recruitment,
qualifications both educational as well as
technical for appointment or conditions of
service to an office or a post under the
State. The rules thus having been made in
exercise of the power under proviso to
Article 309 of the Constitution, being
statutory cannot be impeached on the
ground
that
the
authorities
have
prescribed tailor made qualifications to
suit the stated individuals whose names
have been mentioned in the appeal.
Suffice to state that it is settled law that
no motives can be attributed to the
Legislature in making the law. The Rules
prescribed qualifications for eligibility
and the suitability of the appellant would
be tested by the Union Public Service
Commission.

It is next contended that several
persons
whose
names
have
been
1342 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
copiously mentioned in the appeal were
not qualified to hold the post of examiner
and they were not capable even to set the
test papers to the examinees nor capable
to evaluate the papers. We are not called
upon to decide the legality of their
appointments nor their credentials in this
appeal as that question does not arise nor
are they before the Court. It is next
mentioned by Mr. Yogeshwar Prasad, the
learned Senior counsel that on account of
inefficiency in the posts' operational
capability repeatedly air accidents have
been occurring endangering the lives of
innocent travellers and this Court should
regulate
the
prescription
of
higher
qualifications and strict standards to the
navigators or to the pilots be insisted on.
We are afraid that we cannot enter into
nor undertake the responsibility in that
behalf. It is for the expert body and this
Court does not have the assistance of
experts. Moreover it is for the rule making
authority or for the Legislature to regulate
the method of recruitment, prescribe
qualifications etc. It is open to the
President or the authorized person to
undertake
such
exercise
and
that
necessary tests should be conducted by
U.P.S.C. before giving the certificates to
them. This not the province of this Court
to trench into and prescribe qualifications
in particular when the matters are of the
technical nature. It is stated in the counter
affidavit that due to advancement of
technology of the flight aviations the
navigators are no longer required and
therefore they are not coming in large
number.
Despite
the
repeated
advertisements no suitable candidate is
coming forward. We do not go into that
aspect also and it is not necessary for the
purpose of this case. Suffice to state that
pursuant to another advancement made in
July, 1992, the appellant is stated to have
admittedly applied for and appeared
before the U.P.S.C. for selection and that
he is awaiting the result thereof. Under
these circumstances, we do not find any
substance in this appeal. The appeal is
accordingly dismissed. No costs."

13. In the case of Col. A.S.
Sangwan vs. Union of India and others
(supra), the Apex Court has held as
follows :

"............A policy once formulated is
not good for ever; it is perfectly within the
competence of the Union of India to
change it, rechange it, adjust it and
readjust it according to the compulsions
of national considerations. We cannot, as
Court, give directives as to how the
Defence Ministry should function except
to state that the obligation not to act
arbitrarily and to treat employees equally
is binding on the Union of India because
it functions under the Constitution and not
over it. In this view, we agree with the
submission of the Union of India that
there is no bar to its changing the policy
formulated in 1964 if these are good and
weighty reasons for doing so.............It
must do so fairly and should not give the
impression that it is acting by any ulterior
criteria or arbitrarily.........So, whatever
policy is made should be done fairly and
made known to those concerned........."

14. In the result, the writ petition
fails and is accordingly, dismissed.
---------
3 All] Smt. Meenashi @ Pinki and another V. State of U.P. and others
1343
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2012

BEFORE
THE HON'BLE RAVINDRA SINGH, J.
THE HON'BLE ANIL KUMAR AGARWAL, J.

Civil Misc. Habeas Corpus Writ Petition
No. 42114 of 2012

Smt. Meenashi @ Pinki and another

 ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri V.P. Gupta

Counsel for the Respondents:
Sri Rajiv Sisodia
A.G.A.

Constitution of India, Article 226-Habeas
Corpus Petition-petitioner No. 1 alleging
herself as major and living as husband
and wife after marriage by Arya Samajchallenging the order passed by S.D.M.
by which send in Nari Niketan-according
to High School marksheet petitioner No.
1
being
minor-but
in
facts
and
circumstances of case being married
with Narendra Singh-she may join the
company of her husband Narendra or her
parents- detention of Nari Niketan not
proper-quashed.

Held: Para-6

This court is cautious about the welfare
of
the
corpus.
The
learned
SDM
Hasanpur
passed
two
orders
dated
24.6.2012 and 21.7.2012 by which she
has been sent to Nari Niktan Moradabad
which does not appear to be proper
therefore, the orders dated 24.6.2012
and 21.7.2012 are hereby set aside. The
corpus is directed to be released from
Nari Niketan Muzaffarnagar forthwith in
the presence of the Officer-in-Charge of
P.S. Hasanpur, the corpus shall be free to
go to his father's house or her husband
Narendra Singh's house, the Officer-incharge of P.S. Hasanpur shall ensure that
no hurt may be caused to the corpus
either at her parent's house or her
husband's house.

(Delivered by Hon'ble Ravindra Singh, J.)

1. Heard Sri V.P. Gupta, learned
counsel for the petitioners, learned A.G.A.
for the State of U.P. and Sri Rajiv Sisodia,
appearing on behalf of respondent no.4
Vijai Pal Singh.

2. This Habeas Corpus Writ petition
has been filed on behalf of Smt. Meenashi
@ Pinki by petitioner no 2 Tek Chandra
with the prayers:-

1.Issue a writ, order or direction in the
nature of certiorari quashing the impugned
order dated 21.7.2012 passed by respondent
no.2 (Annexure no.3 to the writ petition).

2.issue a writ, order or direction in the
nature of habeas corpus directing the
respondent no. 3 to produce the corpus
before this Hon'ble Court and set him free
on her own desire.

3.Issue any other writ order or
direction in favour of the petitioner, which
this Hon'ble court may deem fit and proper
under the facts and circumstances of the
case.

4.To award the cost of the present writ
petition to the petitioner.

3. The facts of this case is that an FIR
has been lodged by Bal Kishan on
22.6.2012 at 8.05 P.M. in respect of the
incident allegedly occurred on 22.6.2012 at
about 6.30 P.M., it has been lodged against
Sri Chandra, Jai Chandra sons of Atar