# Dr. Digvijay Nath Tiwari v. The State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 956
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-13
- **Case number:** Writ A No. 14490 of 2018
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-digvijay-nath-tiwari-v-the-state-of-u-p-ors-45300
- **Pages:** 7

## Headnote

A. Challenging-impugned order-rejectingselection of petitioner-for the post of
headmaster-approving
selection
of
respondent-on the ground-not qualified
for the said post-U/R-12(5) of Rules,
1998-U/R-7AA of Act, 1921-not a full
time
teacher-committed
fraud
&
misrepresentation-C/M
entitled-to
promote/appoint
teachers-to
the
vacancy-in L.T Grade-no embargo-on C/M
on
making
appointment-of
asst.
teachers-in other streams.

B. Held, I have no hesitation in holding
that the finding returned by the Board
that
petitioner
does
not
have
the
requisite experience mandated under the
''Note' to sub-Rule (5) of Rule 12 is
justified and valid, therefore, calls for no
interference. It is thus clear that the
Committee of Management is entitled to
promote/appoint such teacher to the
vacancy caused in L.T. grade who is
required to teach the subject which the
Committee
of
Management
thinks
necessary
in
the
interest
of
the
institution.
Learned
counsel
for
the
petitioner failed to show any provision of
Act, 1921 or the Regulations and Rules
framed thereunder that there is any
embargo upon the Committee of the
Institution for not making appointment
for assistant teachers in other streams.

Writ
Petition
No.
14490
of
2018
dismissed and Writ Petition No. 36446 of
2017 allowed. (E-8)

## Text

956 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)1ILR 956

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.11.2019

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Writ A No. 14490 of 2018
With
Writ A No. 36446 of 2017

Dr. Digvijay Nath Tiwari ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Radha
Kant
Ojha,
Sri
Ratnakar
Upadhyay

Counsel for the Respondents:
C.S.C., Sri Anil Kumar Singh, Sri Ashok
Kumar Yadav, Sri Rahul Jain, Sri Santosh
Kumar Dwivedi, Sri Anil Kumar Singh

A. Challenging-impugned order-rejectingselection of petitioner-for the post of
headmaster-approving
selection
of
respondent-on the ground-not qualified
for the said post-U/R-12(5) of Rules,
1998-U/R-7AA of Act, 1921-not a full
time
teacher-committed
fraud
&
misrepresentation-C/M
entitled-to
promote/appoint
teachers-to
the
vacancy-in L.T Grade-no embargo-on C/M
on
making
appointment-of
asst.
teachers-in other streams.

B. Held, I have no hesitation in holding
that the finding returned by the Board
that
petitioner
does
not
have
the
requisite experience mandated under the
''Note' to sub-Rule (5) of Rule 12 is
justified and valid, therefore, calls for no
interference. It is thus clear that the
Committee of Management is entitled to
promote/appoint such teacher to the
vacancy caused in L.T. grade who is
required to teach the subject which the
Committee
of
Management
thinks
necessary
in
the
interest
of
the
institution.
Learned
counsel
for
the
petitioner failed to show any provision of
Act, 1921 or the Regulations and Rules
framed thereunder that there is any
embargo upon the Committee of the
Institution for not making appointment
for assistant teachers in other streams.

Writ
Petition
No.
14490
of
2018
dismissed and Writ Petition No. 36446 of
2017 allowed. (E-8)

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

1. Heard Sri R.K. Ojha, learned
Senior Counsel, assisted by Sri Ratnakar
Upadhyay, learned counsels for the
petitioner, learned Standing Counsel for
the State-respondent, Sri S.K. Dwivedi for
the third respondent, Sri Rahul Jain for the
sixth respondent and Sri V.K. Singh,
learned Senior Counsel, assisted by Sri
H.P. Singh learned counsel for the
petitioner in the connected writ petition
(Writ-A No. 36446 of 2017), i.e. sixth
respondent in the lead petition (Writ-A
No. 14490 of 2018).

2. On the consent of the parties, the
pleadings and facts of Writ-A No. 14490
of 2018 is being taken for the sake of
convenience
for
deciding
the
writ
petitions.

3. The writ petition is directed
against the order dated 24 May 2018,
passed by the third respondent, Secretary,
U.P.
Secondary
Education
Service
Selection Board, Prayagraj, rejecting the
selection of the petitioner for the post of
Headmaster in high school and approving
the selection/appointment of the sixth
respondent.

4. The facts, briefly stated, is that the
Board invited applications, inter alia, for
1 All. Dr. Digvijay Nath Tiwari Vs. The State of U.P. & Ors.
957
the
post
of
Headmaster
vide
Advertisement No. 1 of 2008, notified on
7 September 2008. The petitioner and the
sixth respondent came to be selected and
their names were included in the select
panel issued by the Board on 12 March
2010. Pursuant thereof, petitioner joined as
Headmaster
in
Gramin
Uchchatar
Madhyamik Pandir Ke Rampur Bariarpur,
District
Deoria,
whereas,
the
sixth
respondent joined as Headmaster in Sri
Shanker
Narvadeshwar
Uchchtar
Madhyamik
Vidyalaya
Beejrapur,
Jhangtaun, Deoria, on 1 July 2010.
Thereafter several petitions came to be
filed either by the petitioner or the third
parties
with
regard
to
the
appointment/selection, but finally on the
directions of the Division Bench of this
Court, the Board decided the eligibility of
the contesting parties by the impugned
order.

5. Earlier, vide order dated 24/1
March 2017 passed by the Board, the sixth
respondent (petitioner in writ petition No.
36467 of 2017) was held unqualified not
having the requisite qualification for L.T.
Grade assistant teacher (Science). The
order dated 24 November 2017 and the
consequential orders are under challenge
in the connected writ petition. However,
by the impugned order dated 28 May
2018, the candidature of the petitioner of
the lead petition has been set aside not
being qualified, but the Board has found
the sixth respondent qualified for the post
of Head Master. In other words, the Board
has for all practical purpose annulled its
earlier order insofar it pertains to the sixth
respondent.

6. The Board rejected the claim of
the petitioner, primarily, on three counts:
(i) petitioner lacks teaching experience on
the post of L.T. grade assistant teacher
mandated in sub-rule (5) of Rule 12 of
U.P.
Secondary
Education
Services
Selection Board Rules 1998; (ii) petitioner
having experience of part time lecturer
(Sanskrit)
under
Section
7-AA
of
Intermediate Education Act, 1921, not
being a full time or regular teacher is not
qualified; (iii) petitioner committed fraud
and misrepresentation as he worked in
three different institutions i.e. Junior High
School/Intermediate
College/Degree
College in the same period.

7. Insofar the sixth respondent is
concerned, it is urged that he has the
experience
of
assistant
teacher
(Agriculture), whereas, no post of assistant
teacher (Agriculture) was sanctioned in the
institution where the petitioner claims to
have been teaching. In other words, it is
urged that assistant teacher (Science) was
approved for the institution, against which
the sixth respondent claims to have been
appointed,
whereas,
he
lacks
the
qualification of assistant teacher (Science).

8. Learned counsel for the petitioner
has made submissions on all the three
points noted in the impugned order
rejecting the claim of the petitioner. It is
urged
that
under
Section
7-AA,
teacher/lecturer is appointed on regular
basis on full time, though they are referred
to as part time lecturer under Section 7AA, but that would not mean that the
teacher is a part time teacher as understood
in common parlance. Petitioner came to be
appointed in a regular pay-scale, therefore,
the finding that petitioner was a part time
lecturer is perse perverse. Part time teacher
is not granted regular pay scale. Petitioner
came to be appointed in 1993 as lecturer
(Sanskrit) and since then he has continued
until his selection on the post.
958 INDIAN LAW REPORTS ALLAHABAD SERIES

9. It is further urged that petitioner
did
not
commit
any
fraud/misrepresentation, of working in
three different institutions simultaneously.
Petitioner
was
appointed
lecturer
(Sanskrit) in 1993 and in 2008 petitioner
came to be appointed lecturer in a degree
college. With regard to the allegation that
petitioner was earlier working in a junior
high school is incorrect and false.
Petitioner had never worked as an assistant
teacher in a junior high school for the
reason that petitioner since inception i.e.
1993 was appointed lecturer (Sanskrit) in
an Intermediate college. The allegation of
the sixth respondent that the petitioner had
instituted a petition being writ petition No.
17342 of 2008, claiming salary on the post
of assistant teacher of a junior high school
is incorrect. It is urged that the petitioner
had not instituted the said writ petition,
rather, it was mischievously filed by some
imposter in 2008. There was no occasion
to claim salary for the post of assistant
teacher for the reason that petitioner came
to be selected in a degree college on a
much higher post.

10. Be that as it may, this Court is
not inclined to enter into disputed
questions of fact, whether petitioner was
employed in three different institutions at
the same time, or whether petitioner was a
part time/full time lecturer.

11. The issue that primarily arises for
consideration is as to whether petitioner
possesses
the
requisite
qualification/experience mandated under
Rule 12 of Rules, 1998.

12. Prior to the enactment of Uttar
Pradesh Secondary Education Services
Selection Board Act, 1982, the selection
appointment
and
qualification
of
headmaster/principal of High School and
Intermediate institutions was laid down in
Appendix A of Regulation 1 of Chapter II
of U.P. Intermediate Education Act, 1921,
which, inter alia, provides that apart from
the minimum educational qualification,
four years teaching experience of class 9
to 12 was mandatory for the head of the
institution i.e. headmaster/principal. In
other words, lecturer appointed to teach
class 11 to 12 was eligible for appointment
as Head Master of High School. However,
with the coming into force of Act, 1982
w.e.f. 14 July 1981, the posts were
entrusted to a Commission, in order to
ensure that good and competent persons
were selected and appointed on the said
post and relevant rules were framed by the
State Government from time to time.
However, vide notification dated 13 July
1988, Rules, 1998, enforced w.e.f. 8
August 1998, were notified. The selections
of the contesting parties were held under
the Rules, 1998. Act, 1982 came to be
amended w.e.f. 20 July 1998, entrusting
entire selection process to the Board in
place of the Commission. Rule 5 of Rules,
1998 prescribes the academic qualification
for appointment to the post of teacher
which reads thus

" 5. Essential Qualifications- A
candidate for appointment to a post of
teacher
must
possess
qualifications
specified in Regulation 1 of Chapter II of
the
Regulations
made
under
the
Intermediate Education Act, 1921."

13. The Chapter II of the Regulations
framed under Act, 1921 deals with
appointment of heads of institutions and
teachers. Regulation 1 of the said Chapter
stipulates the minimum qualification for
appointment as head of institution and
teacher in any recognized institution
1 All. Dr. Digvijay Nath Tiwari Vs. The State of U.P. & Ors.
959
whether
by
direct
recruitment
or
otherwise, shall be as given in Appendix
A. As per the said Appendix, the essential
qualification for the post of head of the
institution reads thus:

"1. Head of the institution:

(1) Trained M.A. or M.Sc. or
M.Com or M.Sc (Agri) or any years
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 to 12
in any training institute or in any
institution or University specified in
above-mentioned para one or in any
degree college affiliated to such University
or institution, recognized by Board or any
institution affiliated from Boards of other
States or such other institutions whose
examinations are recognized by the Board,
or should the condition is also that he/she
should not be below 30 years of age.

2. xx xx xx

3. xx xx xx"

14. Part III of Rules, 1998, lays down
the procedure for recruitment to various
categories of teachers. Rule 10(a) thereof
provides, the mode of recruitment of
Principal of an Intermediate College or
Headmaster of High School. Rule 12 lays
down the procedure for direct recruitment.
The ''Note' appended to Rule 12 stipulates
the teaching experience that shall be
counted for the post of Principal/Head
Master. Note reads thus:

"Note.- For the purpose of
calculating
experience
the
service
rendered as Headmaster of Junior High
School or as assistant teacher in a High
School/Intermediate College shall be
counted in the case of selection of
Headmaster;
and
for
selection
of
Principal,
the
service
rendered
as
Headmaster of a High School or as a
Lecturer shall only be counted. The
provision of sub-rule (4) of Rule 12
regarding the certificate of experience
shall mutatis mutandis apply."

15. The ''Note' further provides for
calculating experience the service rendered
as Headmaster of junior high school or as
assistant
teacher
in
a
High
School/Intermediate
College
shall
be
counted in the case of selection of
Headmaster.

16. As noted supra, Rule 5 of the
Rules,
1998
deals
with
academic
qualifications for appointment to the post
of teacher and contemplates that a
candidate must possess qualification as
specified in Regulation 1 of Chapter II of
the Regulations. Appendix A of the
Regulations mandates that a candidate
should have four years experience of
teaching classes 9 to 12. However, the
`Note' appended to sub rule (5) of Rule 12
excludes the teaching experience of
assistant teacher for classes 11 and 12 for
the post of Headmaster. The ''Note' clearly
stipulates that for selection to the post of
the Headmaster, with which the Court is
concerned, for the purpose of calculating
experience, services rendered as assistant
teacher teaching upto class 10 are qualified
for the post of Headmaster. The ''Note'
excludes lecturers (class 11 and 12) for
being
considered
for
the
post
of
Headmaster. Act, 1982 being a subsequent
Act, the ''Note' appended to sub-rule (5) of
Rule 12 of Rules, 1998 has the effect of
modifying the conditions of qualifying
experience mentioned in Appendix A of
the Regulations under the Intermediate
Act. Section 32 of the Act, 1982, provides
960 INDIAN LAW REPORTS ALLAHABAD SERIES
that the provision of the Intermediate Act
and Regulations made thereunder will
continue to be in force in case they are not
inconsistent with the Principal Act and the
Rules made thereunder.

17. The Supreme Court in Balbir
Kaur and another Versus Uttar Pradesh
Secondary Education Service Selection
Board, Allahabad, was called upon to
consider sub-Rule (5) of Rule 12 of Rules,
1998 with regard to the qualifications for
the post of principal of Intermediate
college. It was held that experience
mandated in the 'Note' to sub-Rule (5) of
Rule 12 of Rules, 1998, prescribes the
requirement of experience for the post,
which is different from what is prescribed
in the Appendix of the Regulations, there
being
a
conflict
between
the
two
provisions, the `Note' shall have an
overriding effect to Appendix in view of
Section 32 of Act, 1982. Para 23 is
extracted:

"23.Having come to the said
conclusion, the issue which still survives
for
consideration
is
whether
for
appointment to the post of Principal, the
qualifying experience as stipulated in the
said `Note' would apply or the one
prescribed
in
the
Appendix-A
to
Regulation I of Chapter II of the
Regulations made under the Intermediate
Act. In our view, answer to the question
can be found in Section 32 of the Principal
Act, which provides that the provision of
the Intermediate Act and Regulations
made thereunder will continue to be in
force in case they are not inconsistent with
the Principal Act and the Rules made
thereunder. As noted hereinbefore `Note'
to sub rule (5) of Rule 12 of 1998 Rules
prescribes the requirement of experience
for the post, which is different from what is
prescribed in the said Appendix A and,
therefore, there being a conflict between
the two provisions, in the teeth of Section
32, the said `Note' shall have an
overriding effect over Appendix A insofar
as the question of experience is concerned.
In this view of the matter, we are in
agreement with the learned Single Judge
that the impugned advertisements were in
conformity with the said `Note' and,
therefore, the selection procedure could
not be faulted on that score."

18. It is admitted by the learned
counsel
for
the
petitioner
that
the
experience certificate placed before the
Board calculating the experience of the
petitioner since 1993 is on the post of
lecturer
(Sanskrit).
The
subsequent
document relied upon granting pay scale to
the petitioner is also on the post of
lecturer. The documents i.e. experience
certificate relied upon by the petitioner
before the Board has been placed on
record which clearly shows that the
petitioner at any point of time was not
appointed assistant teacher rather he had
teaching
experience
of
lecturer,
i.e.
teaching students of classes 11 and 12.

19. In view thereof, admittedly
petitioner was not having the requisite
experience mandated in the ''Note' to subRule (5) of Rule 12. The finding to that
effect returned by the Board while passing
the impugned order cannot be faulted.

20. Reliance has been placed by the
learned
Senior
Counsel
on
various
notifications issued in the past by the
Board to contend that a candidate
appointed as assistant teacher in various
universities/colleges
affiliated
to
the
University and working in L.T. Grade pay
scale or higher pay scale and having four
1 All. Dr. Digvijay Nath Tiwari Vs. The State of U.P. & Ors.
961
years teaching experience are also eligible. It is
sought to be urged that the advertisement
clearly prescribes that a candidate working on
higher pay scale would have the requisite
experience.
The
lecturer
of
a
degree
college/university can also seek appointment
on the post of Headmaster.

21. In rebuttal, learned counsel
appearing for the Board submits that the
advertisement is strictly as per the
provisions of Rule 5/12 of Rules, 1998.
The four year experience
mandated
thereunder is that of an assistant teacher
and not of a lecturer of an intermediate
Institution
and/or
University/degree
college. In the State there are colleges
affiliated to Sanskrit University imparting
education from Class 8 to graduation or
higher level. But since 31 October 2008
colleges affiliated to Sanskrit University
are imparting education for graduate
classes. The teachers working in these
universities/colleges as assistant teacher
teaching class 8 to 10 would alone be
eligible for the post of Headmaster,
whereas, teachers appointed as lecturer to
teach class 11 and 12 or higher classes
would not qualify under Rule 12. The rule
mandates experience of assistant teacher
and not of higher post. An assistant teacher
working on higher pay scale would
certainly not mean that such a teacher
would
include
the
lecturer
of
intermediate/degree college.

22. On specific query, learned Senior
Counsel does not deny that in the State of
Uttar
Pradesh
the
Sanskrit
University/Colleges
affiliated
to
the
University are taking classes from class 8
to degree level.

23. In view thereof, I have no
hesitation in holding that the finding
returned by the Board that petitioner does
not
have
the
requisite
experience
mandated under the ''Note' to sub-Rule (5)
of Rule 12 is justified and valid, therefore,
calls for no interference.

24. Insofar as the eligibility of the sixth
respondent/petitioner of Writ - A No.36446 of
2017 is concerned, the allegation against him is
that he is B.Sc./M.Sc. (Agriculture). It is,
therefore, urged that the sixth respondent was
not qualified to have been appointed assistant
teacher (Science). It is not in dispute that sixth
respondent has been working as assistant
teacher in High School and has the requisite
experience mandated by the ''Note' to Rule 12
of Rules, 1998. The plea, that since vacancy in
Science subject arose in the institution,
therefore, only a Science teacher could have
been appointed is not tenable. Under the Act,
1921, lecturers are appointed for a specific
subject, but the number of assistant teacher is
determined depending upon the strength of
the students enrolled in the institution. It is left
open to the Committee of Management of the
Institution to appoint teachers as is required.
In other words, where assistant teacher
teaching Science or English retires, it is not
incumbent
upon
the
Committee
of
Management of the Institution to appoint
teachers for Science or English subjects. The
discretion is available with the Committee
depending whether teachers to teach the
subject are available. In case, the teachers are
available the Committee of Management can
appoint any other person eligible for teaching
the subject for which teacher is required.

25. Division Bench of this Court in
B.P. Tripathi Vs. State of U.P. and
others, held that the expression: -

"...... for teaching the subject in
which the teacher ....... in the L.T. grade is
required" cannot be read as "for teaching
962 INDIAN LAW REPORTS ALLAHABAD SERIES
the subject which was being taught by the
teacher whose vacancy is to be fulfilled".

26. It is thus clear that the Committee of
Management is entitled to promote/appoint
such teacher to the vacancy caused in L.T.
grade who is required to teach the subject
which the Committee of Management thinks
necessary in the interest of the institution. The
decision was followed by the subsequent
Division Bench in Pati Ram Pal Vs. District
Inspector of Schools and others.

27. On specific query, learned
counsel appearing for the petitioner and
the Board do not dispute that the sixth
respondent has the requisite experience for
the post of assistant teacher, the only plea
being raised that since he was B.Sc.
(Agriculture), therefore, he could not have
been appointed against the vacancy of
assistant teacher (Science), lacks merit.

28. Learned counsel for the petitioner
failed to show any provision of Act, 1921
or the Regulations and Rules framed
thereunder that there is any embargo upon
the Committee of the Institution for not
making appointment for assistant teachers
in other streams.

29. Accordingly:

(i) Writ Petition No.14490 of
2018 (Dr. Digvijay Nath Tiwari Vs. State
of U.P. and others), is dismissed.

(ii) Writ Petition No.36446 of 2017
(Ajay Kumar Sahi Vs. State of U.P. and
others), is allowed. Impugned order dated 24
March 2017 passed by the Board and
consequential orders are set aside and quashed.

30. No order as to cost.
----------
(2020)1ILR 962

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2019

BEFORE
THE HON'BLE SURYA PRAKASH KESARWANI, J.

Writ A No. 18163 of 2019

Reena Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vinod Shanker Tripathi, Sri Vijay Shanker Tripathi

Counsel for the Respondents:
C.S.C., Sri Sanjay Kumar Singh

A.Challenging-impugned order-cancellingappointment-from
the
post
of
Asst.
Teacher-on
the
ground-appointment
obtained-on
the
basis
of-forged
&
fabricated
T.E.T
marksheet/certificate-if
inducted on this basis-becomes beneficiary
of illegal & fraudulent appointment-hence
void ab initio-cancellation lawful.

B. Held, that the forgery committed by the
petitioner, for obtaining public employment on
the
basis
of
forged
TET
Examination
marksheet/certificate; is in the basic eligibility
conditions for appointment on the post of
Assistant Teacher. Therefore, it vitiates the
process
of
her
appointment.
Thus,
the
appointment of the petitioner is void ab initio
and she cannot be said to be a government
servant. Therefore, her appointment has been
lawfully cancelled by the impugned order.

Writ Petition dismissed. (E-8)

List of cases cited: -

1. Union of India & Anr. v. Raghuwar Pal Singh,
(2018) 15 SCC 463

2. Nidhi Kaim & Anr. v. State of Madhya
Pradesh & Ors., (2017) 4 SCC 1