# Dubey v. District

- **Citation:** (2001) 1 ILRA 127
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-01-14
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dubey-v-district-39574
- **Pages:** 4

## Text

1All] Rajeev Kumar Singh V. State of U.P. 127
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By the Court

1. Father of the petitioner, Ssita
Sharan Singh was working as Art Teacher
(L.T. Grade) in Sarvodaya Shiksha Sadan
Inter College, Meerapur, Allahabad. He
died in harness on 14.01.1999. The
Petitioner is the only son of the deceased.
He
passed
High
School
in
1991,
Intermediate in 1993 and B.Sc. in 1996.
Thereafter,
he
passed
Intermediate
Examination 1998 in Drawing under
Regulation 17-3 Chapter XII from Board
of
High
School
and
intermediate
Education U.P., Allahabad .In the same
year
he
passed
Intermediate
Grade
Drawing Examination in 1998 conducted
by Maharashtra Government. He belongs
to backward class category. He moved an
application on 19.5.99 before the District
Inspector of Schools, Allahabad (in Brief
DIOS) claiming appointment on the post
of Assistant Teacher, under ,under the
dying in harness rules. The District
Committee constituted under Regulation
105, Chapter III of the Regulations
framed under the U.P. Intermediate
Education Act,1921 (in brief Regulations)
considered
the
petitioners
claim
on
18.1.2000 and since no class-III post was
vacant, recommended appointment on a
class-IV post. Letter for appointing the
petitioner in Ishwar Saran Inter College.
Allahabad was issued on 19.1.2000 by the
DIOS. The petitioner did not accept the
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
128
appointment on a class-IV post and
challenged the order dated 19.1.2000 by
means of Civil Misc. Writ Petition NO.
17172 of 2000 before this court chaining
appointment on the post of Art Teacher,
as per his qualification under the dying in
harness rules, This court on 22.4.2000
quashed the order dated 19.1.2000 for
appointing the petitioner. And in view of
decision of division bench of this court in
Sanjeev
Kumar
Dubey
V.
District
Inspector of Schools, Etawah and others
2000(1) UPLBEC 634 [2000(1)ESC 635]
disposed of the writ petition and directed
the DIOS to decide the application of the
petitioner in accordance with law. The
application of the petitioner has been
rejected by the DIOS by order dated
1.8.2000 which has been challenged in
this petition.

2. Sri Kuldeep Kumar Singh learned
counsel for the petitioner has vehemently
urged that in view of decision in Sanjeev
Kumar
Dubey
(Supra)
petitioner
possessed
the
qualification
to
be
appointed Art Teacher, therefore, the
DIOS illegally rejected the application
under the dying in harness rules. Learned
counsel further urged that even if the
petitioner could not be appointed on the
post of assistant teacher, the petitioner
was entitled for appointment on a class-III
post as per his qualification and if no post
of class-III was vacant, a supernumerary
post should have been created by the
DIOS. On the other hand, Sri M.C.
Chaturvedi the learned Additional Chief
Standing
Counsel
appearing
for
respondent no. 1 to 3 urged that the
petitioner
was
not
qualified
to
be
appointed assistant teacher, therefore, the
decision in Sanjeev Kumar Dubey (Supra)
was not applicable to the facts of this
case. He further urged that since no classIII post was available and the petitioner
did not accept his appointment on classIV post, there is no option and the petition
is liable to be dismissed.

3. The first question is whether the
petitioner was qualified to be appointed as
Assistant Teacher (Art). The DIOS
rejected the claim of the petitioner as he
was
not
'Trained'
as
provided
in
Appendix 'A' to Chapter II of the
Regulations. The relevant para 2 to
Appendix 'A' is extracted below:-

"Under it in reference to prescribed
qualifications the word "trained" means
post-graduate training qualification such
as L.T. B.T., B. Ed. S.C. or M.Ed. of any
university or institution as specified in
earlier para or any equivalent (Degree or
Diploma). It also includes departmental
A.T.C. and C.T. with minimum teaching
experience of five years J.T.C./B.T.C.
grade teacher shall also be considered to
be C.T., if he has worked in C.T. grade at
least for five years."

4. The petitioner was not 'Trained'
as he did not possess the qualification
extracted above. But the learned counsel
for the petitioner rightly urged that
'Trained'
was
not
an
essential
qualification for appointment to the post
of Assistant teacher(Art) for teaching
class IX and X. In Appendix 'A' the
essential and desirable qualification have
been prescribed in column 3 and 5.
'Trained' is mentioned as a desirable
qualification for the post. It is not an
essential qualification for the post of
Assistant Teacher (Art) for teaching class
IX and X. There is a difference in
desirable or preferential qualification and
essential qualification. If a candidate does
not possess essential qualification, then he
1All] Rajeev Kumar Singh V. State of U.P. 129
is ineligible for the post. Since 'Trained'
was only a preferential qualification the
petitioner could not be held ineligible, on
this
ground.
Therefore,
the
DIOS
committed an error in rejecting the
application of the petitioner because the
petitioner was not 'Trained". To this
extent
the
learned
counsel for the
petitioner appears to be correct but even
then, unfortunately, the petitioner is not
entitled to any relief.

5. The petitioner is no doubt B.Sc.
One can appreciate his hesitancy in
accepting appointment on class-IV post.
But he can get benefit of the dying in
harness rules and the ration laid down by
this court in Sanjeev Kumar Dubey
(Supra) only if it is permissible in law.
The essential qualification for Assistant
Teacher (Art) for teaching class IX and
X is not B.Sc. but a training certificate as
mentioned in column 3 of serial number
10 of Appendix 'A' to Chapter II of the
Regulations. The relevant is extracted
below:-

"10 Drawing and commercial art
teacher
For High School (Classes 9-10).

(1) Art
Master's
Training
Certificate(formerly known as Teacher's
Training Certificate) of Government Art
and Craft College, Lucknow.
Or
(2) Intermediate
examination
of
U.P. Madhyamik Shiksha Parishad with
technical art
Or
(3) High School examination with
technical art and any one
of
the
following qualification:-
(a) B.A. with drawing or painting
Or
(b) Fine Art Diploma of Kkala Bhavan of
Shanti Niketan
Or
(c) Certificate of Government Drawing
and Handicraft Centre, Allahabad.
Or
(d) Final
Drawing
Teacher
ship
Examination of Calcutta
Or
(e)
Teacher's
Senior
certificate
Examination of Mayo Schools or Arts of
LAHORE
Or
(f)
Intermediate
Grade
Drawing
Examination of Bombay
Or
(g) Third grade Arts Schools Examination
of Bombay
Note:
(1)
Under
above-mentioned
clause
(2)
passing
of
Intermediate
examination is not compulsory for all. But
if there is no proof of having taken
technical art in that examination then in
its place proof of knowledge of technical
art of that standard can be accepted.

Teachers
of
girls
schools
are
exempted
from
the
qualification
of
technical art.

(2) Under above-mentioned clause
(3) passing of High School Examination
is compulsory for all. But if there is no
proof of having taken technical art in that
examination then in its place proof of
knowledge of technical art of that
standard can be accepted.

Teachers of girls schools shall be
exempted
for
the
qualification
of
technical art."

6.
The
petitioner
passed
Intermediates
Grade
Drawing
Examination conducted by Maharashtra
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
130
Government in 1998. The learned counsel
for petitioner claims the petitioner was
covered in clause (f) and, therefore, he
had the essential qualification. This is
disputed by the learned counsel for
respondents. I have given my anxious
consideration to this argument. Clause
(3)(f) envisages, "Intermediate Grade
Drawing Examination of Bombay", as an
essential qualification .Petitioner does not
possess this qualification. The clause does
not provide intermediate Grade Drawing
Examination conducted by Maharashtra
Government. The entry is specific. It does
not include similar courses conducted by
Maharashtra government. This is further
clear from a perusal of other clauses of
(3).For instance, Fine Art Diploma of
Kala Bhavan of Shanti Niketan or
Certificate of Government Drawing and
Handicraft Centre, Allahabad or Final
Drawing Teacher ship Examination of
Calcutta, etc. The clause (3) recognize
certificates issued by specific institutions
mentioned of a particular city for state.
Therefore, it is not possible to accept that
the
certificate
obtained
from
any
institution in Maharashtra would be
covered in it. Clauses(3) is not illustrative
but it is exhaustive. The certificate of
Intermediate Grade Drawing Examination
conducted by Maharashtra Government,
possessed
by
the
petitioner
is
not
recognized as essential qualification in
serial number 10 of Appendix. 'A' to
chapter II of the Regulations. In Sanjeev
Kumar Dubey (supra) the division bench
has held that under the dying in harness
rule a candidate could be appointed if he
possess the essential qualifications for
appointment on the post of assistant
teacher.
Therefore,
the
decision
in
Sanjeev Kumar Dubey(supra) is of no
help to the petitioner and he is not
qualified to be appointed as Assistant
Teacher(art).

7. The next question is if a class-III
post was not vacant the DIOS should have
created a supernumerary post of class-III
for appointing he petitioner. The DIOS
appointed the petitioner on class-IV post,
as no class-III post was vacant. The apex
court
in
Director
of
Education
(Secondary) and another v. Pushpendra
Kumar and others 1998 (2) UPLBEC
1310 has held that under the Regulations
if a vacancy is not available in class-III
post the dependant would be appointed on
a class-IV post but a supernumerary post
of class-III cannot be created nor any
direction can be issued by High Court for
creating a supernumerary post of class-III
.The rejection of the application of
petitioner by DIOS is upheld but for a
different reason.

8. For the reasons aforesaid, I do not
find any merit in this petition.

9. This petition fails and a
accordingly dismissed.

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