# Gaurav Mishra & Ors v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 1293
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-05
- **Case number:** WRIT A No. 13967 of 2020
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaurav-mishra-ors-v-state-of-u-p-ors-47383
- **Pages:** 15

## Headnote

A. Service Law - Education - Appointment
- Uttar Pradesh Secondary Education
Services Selection Board Rules, 1998 -
Rule 5 - Uttar Pradesh Intermediate
Education Act, 1921 - Sections 15 & 16 -
National Council of Teacher Education Act,
1993 - Sections 12-A & 2(ka)- Right of
1294 INDIAN LAW REPORTS ALLAHABAD SERIES
Children to Free and Compulsory Act, 2009
- Section 23(1) - National Council for
Teacher Education Regulations, 2014.

The controversy revolves around the
prescribed qualification for selection to
the post of the Assistant Teachers (T.G.T.)
in the subjects Mathematics and Science
in the State of U.P. (Para 6)

A comparison of the minimum qualification
prescribed for Secondary/High School in Item
No. '4' of the table to NCTE Regulations, 2014
and the Appendix-A in Chapter-II of the
Regulations framed under the Act, 1921 shows
that for being appointed as Assistant Teacher to
teach subjects Mathematics and Science for
classes IX & X, a candidate has to study upto
Graduate or Post-Graduate with Bachelor of
Education (B.Ed.) as the training qualification.
This reveals that a subject teacher has to be a
graduate in the relevant subject, i.e. he or she
must
have
studied
the
relevant
subject
(Mathematics
or
Science)
at
least
upto
Graduation. The B.A. or B.Sc. in the relevant
subjects Mathematics and Science, as
prescribed qualification in the Appendix-A
of Chapter II of the Regulations framed
under the Act, 1921, therefore, cannot be
said
to
be
inconsistent
with
the
qualification
prescribed
in
the
NCTE
Regulations, 2014. (Para 11)

B. Uttar Pradesh Intermediate Education
Act, 1921 - National Council of Teacher
Education Act, 1993 - The repugnancy
between
two
legislations,
if
is
an
irreconcilable conflict, only then the State
law must yield in favour of the Central law
- The NCTE Act, 1993 is a law relatable to Entry
'66' of List-I of Schedule-VII of the Constitution
of India which empowers the Parliament to
legislate for coordination and determination of
standards
in
the
institutions
for
higher
education. Whereas the Intermediate Education
Act is a legislation which is referable to Entry
'25' of List-III-Concurrent List. In respect to the
field "education", the State, thus, has power to
legislate, subject to the provisions of Entry '66'
of List-I. (Para 12)

There is no repugnancy as the subject
"Education" falling within the legislative
competence
of
the
State
is
unquestionable. The attempt of the State
Legislature is to provide complete measures and
methodology to regulate and supervise the
system of High School and Intermediate
Education in the State. As is seen from the
legislative scheme, the Regulations framed
under the NCTE Act provide the minimum
standards to the extent that a candidate for
being appointed to the post of Assistant Teacher
at Secondary School level must be at least a
Graduate and possess training qualification for
teaching. Whereas, the Intermediate Education
A

## Text

_Characters 0–39,974 of 49,484. This is a partial read: ask again with offset=39974 for what follows._

9 All Gaurav Mishra & Ors. Vs. State of U.P. & Ors.
1293
available as also whether the procedure as
prescribed under the relevant service rules
had been adhered to.

36. Ultimately all the issues which are
noticed and enunciated above would merit
consideration
before
the
respondents
evaluate the claims of the individual
petitioners here. The Court is of the firm
opinion that a claim for pensionary benefits
cannot be negatived solely on the basis of a
mere reiteration of the Validating Act
having been introduced. The respondents
would have to necessarily evaluate such
claims bearing in mind the following
questions which would arise:-

A. Whether the service rendered
in temporary, ad hoc, or officiating
capacity was one which was discharged
against a permanent or temporary post;

B. Whether the appointment was
made in accordance with the provisions
made in the prevalent service rules;

C. Whether such service can be
excluded notwithstanding the provisions
made in the proviso to Rule 3(8) of the
1961 Rules;

D. Whether the service rendered
in a work-charged establishment followed
by regularisation can be legally excluded
while computing qualifying service;

E. Whether such service was
performed in connection with work which
was
regular
and
perennial
and
the
engagement
in
a
work
charged
establishment was a mere ruse to deny
benefits of long service.

37. All these and other aspects would
merit
further
examination
by
the
respondents before ruling upon the claims
of the petitioners here for grant of
pensionary benefits. For the aforesaid
purpose, the matters shall stand remitted to
the
competent
authority
under
the
respondents to reevaluate the claim of the
petitioners here in accordance with the
observations
made
hereinabove.
The
exercise
of
reconsideration
may
be
concluded with expedition and preferably
within a period of 3 months of the date of
presentation of a duly authenticated copy of
this order.

38. The writ petitions shall stand
disposed of in the above terms.
----------
(2021)09ILR A1293
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2021

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.

WRIT A No. 13967 of 2020

Gaurav Mishra & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:s
Sri Rishab Srivastava, Sri Hari Narain Singh
(Senior Adv.)

Counsel for the Respondents:
C.S.C., Sri A. K.S. Parihar.

A. Service Law - Education - Appointment
- Uttar Pradesh Secondary Education
Services Selection Board Rules, 1998 -
Rule 5 - Uttar Pradesh Intermediate
Education Act, 1921 - Sections 15 & 16 -
National Council of Teacher Education Act,
1993 - Sections 12-A & 2(ka)- Right of
1294 INDIAN LAW REPORTS ALLAHABAD SERIES
Children to Free and Compulsory Act, 2009
- Section 23(1) - National Council for
Teacher Education Regulations, 2014.

The controversy revolves around the
prescribed qualification for selection to
the post of the Assistant Teachers (T.G.T.)
in the subjects Mathematics and Science
in the State of U.P. (Para 6)

A comparison of the minimum qualification
prescribed for Secondary/High School in Item
No. '4' of the table to NCTE Regulations, 2014
and the Appendix-A in Chapter-II of the
Regulations framed under the Act, 1921 shows
that for being appointed as Assistant Teacher to
teach subjects Mathematics and Science for
classes IX & X, a candidate has to study upto
Graduate or Post-Graduate with Bachelor of
Education (B.Ed.) as the training qualification.
This reveals that a subject teacher has to be a
graduate in the relevant subject, i.e. he or she
must
have
studied
the
relevant
subject
(Mathematics
or
Science)
at
least
upto
Graduation. The B.A. or B.Sc. in the relevant
subjects Mathematics and Science, as
prescribed qualification in the Appendix-A
of Chapter II of the Regulations framed
under the Act, 1921, therefore, cannot be
said
to
be
inconsistent
with
the
qualification
prescribed
in
the
NCTE
Regulations, 2014. (Para 11)

B. Uttar Pradesh Intermediate Education
Act, 1921 - National Council of Teacher
Education Act, 1993 - The repugnancy
between
two
legislations,
if
is
an
irreconcilable conflict, only then the State
law must yield in favour of the Central law
- The NCTE Act, 1993 is a law relatable to Entry
'66' of List-I of Schedule-VII of the Constitution
of India which empowers the Parliament to
legislate for coordination and determination of
standards
in
the
institutions
for
higher
education. Whereas the Intermediate Education
Act is a legislation which is referable to Entry
'25' of List-III-Concurrent List. In respect to the
field "education", the State, thus, has power to
legislate, subject to the provisions of Entry '66'
of List-I. (Para 12)

There is no repugnancy as the subject
"Education" falling within the legislative
competence
of
the
State
is
unquestionable. The attempt of the State
Legislature is to provide complete measures and
methodology to regulate and supervise the
system of High School and Intermediate
Education in the State. As is seen from the
legislative scheme, the Regulations framed
under the NCTE Act provide the minimum
standards to the extent that a candidate for
being appointed to the post of Assistant Teacher
at Secondary School level must be at least a
Graduate and possess training qualification for
teaching. Whereas, the Intermediate Education
Act ensures that a candidate to be appointed as
Assistant Teacher in a subject must be well
versed in the relevant subject/discipline, in
which he/she is appointed to teach. (Para 13)

Thus, Keeping in mind the doctrine of pith and
substance, having gone through the legislative
scheme of the Intermediate Education Act, 1921
(a State legislature), suffice it to note that the
State Act is a self-contained code enacted
with a distinct and predominant purpose
of regulating and supervising the system
of
High
School
and
Intermediate
Education in the State of Uttar Pradesh.
There is no overlapping between two
legislations resulting in any repugnancy.
(Para 16)

Therefore, qualifications prescribed in Entry '3'
and '33' of Appendix 'A' for the post of Assistant
Teachers (T.G.T.) in subjects Mathematics and
Science
are
not
inconsistent
with
the
qualifications prescribed in Item No. 4 of the
Table in the First Schedule of the NCTE
Regulations, 2014 and the said entries are
not ultra vires to S. 12-A of the NCTE Act
read with NCTE Regulations, 2014. (Para
16)

C. Every candidate aspiring to become a
teacher has to be possess the qualification
needed to teach the subject - As per the
NCTE Regulations, 2014, a person who is not a
"graduate" cannot be treated as qualified for
recruitment to the post of Assistant Teacher in a
Secondary School. (Para 18)

Words & Phrases - 'Graduate' - The word
"Graduate" incorporated as qualification in the
NCTE Regulations is the prescribed minimum
9 All Gaurav Mishra & Ors. Vs. State of U.P. & Ors.
1295
standard
educational
qualification
to
be
possessed by a person for recruitment as
Education Teacher in a Secondary School. The
word
"Graduate"
mentioned
in
the
First
Schedule of NCTE Regulations being the
prescribed qualification cannot be given such a
wide meaning to include "all Graduates"
including those who possessed B.Tech degree.
(Para 18)

D.
The
comparison
of
syllabus
and
determination of equivalence to the two
qualifications is within the domain of the
subject experts. It is not possible for the
Court to hold that the B.Tech degree is
equivalent to the "Graduation" "(B.A. or B.Sc.
course)" in the subjects Mathematics and
Science and that the "Graduates in various
disciplines of B.Tech course" which is a technical
course, are qualified for appointment to the
posts of Assistant Teacher in the subjects
Mathematics and Science. (Para 18, 19)

E.
Doctrine
of
pith
and
substance
discussed - One of the settled principles to
examine the repugnancy or conflict between the
provisions of a law enacted by one legislative
constituent and the law enacted by the other
under the concurrent list, is to apply the
doctrine of pith and substance. The purpose of
applying this principle is to examine, as a matter
of fact, the nature and character of the
legislation in question. (Para 14)

F. With respect to the challenge to the
advertisement
petitioners
cannot
be
permitted provisionally to participate in
the selection in question as the Apex
Court has taken strong exceptions to the
state
of
affairs
in
the
matter
of
appointment of teachers in the state of
U.P. The Apex Court had disapproved the
practice of making ad hoc appointments for a
long time and noted that this had created a
mess in the education system. (Para 20)

G. Equivalence of B.Tech course with B.A.
or B.Sc. (Mathematics and Science) - An
equivalence Committee of experts has been
constituted by the State Government and it can
examine the said issue. The State Government
is directed to place the matter of equivalence
before the Expert Committee which has been
constituted
for the purpose to take an
expeditious decision, in accordance with law.
(Para 21, 22)

H. Proposal of the Board of High School
and
Intermediate,
Uttar
Pradesh
forwarded by the letter dated 26.11.2020
- The Column-IV of the said proposal in
Parishisth 'Ga' appended as Annexure S.C.A. '1'
to the short counter-affidavit filed by the State,
refers to three alternative qualifications,
prescribed in the First Schedule of the
NCTE Regulations, 2014. The qualification
in
clause
'Ga'
of
"four
years
B.A.
Ed./B.Sc.Ed. degree" from the institutions
recognised by NCTE refers to the degree
of an integrated course of "B.A. with
B.Ed." or "B.Sc. with B.Ed." and cannot be
confused as referring to the four years B.Ed,
degree.
Moreover,
being
an
alternative
qualification, if there is no institution in the
State of U.P. imparting integrated course of B.A.
Ed./B.Sc.Ed.,
it
is
open
for
the
State
Government to modify the proposal of the Board
of High School and Intermediate Education,
Prayagraj
while
making
amendments
in
Appendix 'A' of Chapter II of the Regulations
framed under the Intermediate Education Act,
1921, to bring it in line with the NCTE
Regulations, 2014. (Para 23)

Writ petition disposed off. (E-4)

Precedent followed:

1. Offshore Holdings Pvt. Ltd. Vs Bangalore
Development Authority & ors., (2011) 3 SCC
139 (Para 14)

2. Deep Chand Vs St. of U.P., AIR 1959 SC 648
(Para 15)

3. Sanjay Singh & ors. Vs St. of U.P. & ors., Civil
Appeal No. 8300 of 2016 (Para 20)

Present petition challenges vires of Rule 5
of the Uttar Pradesh Secondary Education
Services Selection Board Rules, 1998 and
Appendix 'A' as contained in Chapter II of
the Regulations frames under the Uttar
Pradesh
Intermediate
Education
Act,
1921.
It
also
challenges
the
Advertisement
No.
01/2021
dated
1296 INDIAN LAW REPORTS ALLAHABAD SERIES
15.03.2021 publishes by U.P. Secondary
Education
Service
Selection
Board,
Prayagraj.

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J. &
Hon'ble Mrs. Sadhna Rani (Thakur), J.)

1. Heard Sri Hari Narain Singh
learned Senior Advocate assisted by Sri
Rishabh Srivastava learned counsel for the
petitioners, Sri A.K.S. Parihar learned
Advocate for the respondent no. 3 and Sri
Sudhanshu Srivastava learned Additional
Chief Standing Counsel appearing for the
State respondents.

2. The petitioners herein have
obtained Bachelors Degree in various
disciplines
of
B.Tech
(Bachelor
of
Technical Education) from the technical
institutions recognized by All India Council
of Technical Education (In short "AICTE"),
affiliated with the Technical Universities.
They claim of having studied Mathematics
and Science as the subjects in the B.Tech
course. They also claim to have obtained
B.Ed (Bachelor of Education) degree from
the institutions recognized by the National
Council of Teacher Education (In short
"NCTE").

3. The contention is that the
petitioners are eligible for appointment to
the post of Assistant Teacher (Trained
Graduate Teachers) (In short "T.G.T") in
Mathematics and Science, to teach students
upto the Secondary level, i.e. Classes IX &
X, being qualified as per the regulations
framed by NCTE providing minimum
qualification for appointment to the said
post.

The vires of the Rule 5 of the
Uttar
Pradesh
Secondary
Education
Services Selection Board, Rules, 1998
(hereinafter referred to as "the Rules,
1998") and Appendix 'A' as contained in
Chapter II of the regulations framed under
the Uttar Pradesh Intermediate Education
Act, 1921 (hereinafter referred to as "the
Act, 1921") is sought to be challenged on
the
ground
that
the
qualifications
prescribed
therein
for
selection/appointment of Trained Graduate
Teachers in Mathematics and Science is
inconsistent with Section 12-A of the
National Council of Teacher Education
Act, 1993 (In short "NCTE Act") readwith
the National Council for Teacher Education
(Determination of Minimum Qualifications
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)
Regulations, 2014 (hereinafter referred to
as "the NCTE Regulations, 2014).

Further prayer in the writ petition
is to quash the qualification prescribed in
Appendix 'A' of Chapter II of the
Regulations framed under the Act, 1921 for
Trained Graduate Teachers in subjects
Mathematics and Science and further to
incorporate qualifications as provided in
Regulations, 2014 framed by NCTE.

4. By means of the amendment
application, the petitioners also challenge
the Advertisement No. 01/2021 dated
15.3.2021 published by the U.P. Secondary
Education
Service
Selection
Board,
Prayagraj for the posts of Assistant Teacher
(Trained Graduate Grade) in the subjects
Mathematics and Science.

5. It is argued by Sri Hari Narain Singh
learned Senior Advocate for the petitioners
that
the
challenge
raised
herein
is
9 All Gaurav Mishra & Ors. Vs. State of U.P. & Ors.
1297
substantiated from the bare perusal of the
statement in the short counter affidavit filed
on behalf of respondent no. 1. In the said
affidavit, respondent no. 1 had admitted that
the qualification prescribed in Appendix 'A'
of Chapter II of the Regulations framed under
the Intermediate Education Act is not in
conformity with the prescribed qualifications
for the post of Assistant Teachers in the
NCTE Regulations 2014. As per the
disclosure made therein, the proposal of the
Board of High School and Intermediate
Education, Prayagraj dated 26.11.2020 has
been returned back with certain objections
and the State requires time (preferably six
months) to complete the process to bring the
Rule 5 of the Rules, 1998 and Appendix 'A'
of Chapter II of the Regulations framed under
the Act, 1921 in conformity with the NCTE
Act, 1993 and NCTE Regulations, 2014.

It is argued that in view of the
admission of the State respondents that the
prescribed
minimum
qualifications
in
Appendix 'A' of Chapter II of the
Regulations framed under the Act, 1921 is
not
in
conformity
with
the
NCTE
Regulations, 2014, the Selection Board
cannot proceed for the selection of the
Assistant Teachers in various subjects
pursuant
to
the
advertisement
dated
15.3.2021.

The submission, thus, is that the
qualifications prescribed in the Appendix 'A'
of Chapter II of the Regulations framed under
the Intermediate Education Act be quashed
and the State be directed to withhold the
selection of the Assistant Teachers (Trained
Graduate Grade) till the amendments are
made in the existing provision.

The alternative prayer is that all the
petitioners herein being qualified as per the
minimum qualifications prescribed by the
NCTE be permitted to participate in the
selection process on provisional basis or else
the
writ
petition
would
be
rendered
infructuous.

The supplementary affidavit dated
15.7.2021 has been filed to bring on record
the syllabus of B.Tech, B.A./B.Sc. course in
the subjects Mathematics and Science to
assert that the petitioners are graduates in the
relevant disciplines and are eligible for
appointment.

6. At the outset, we may note that the
complete syllabus of the course concerned for
making comparison of the papers of study in
Mathematics and Science of B.A./B.Sc.
courses has not been brought on record.

The controversy, thus, revolves
around the prescribed qualification for
selection to the post of the Assistant Teachers
(T.G.T.) in the subjects Mathematics and
Science in the State of U.P.

7. Sri Sudhanshu Srivastava, learned
Additional Chief Standing Counsel for the
State respondents, in rebuttal, submits that
there is no inconsistency in the prescribed
qualification
as
published
in
the
advertisement dated 15.3.2021. The State is
under obligation to complete the selection to
the post of Assistant Teacher (T.G.T.) against
all the current and future vacancies reported
as per the Rules, in view of the directions of
the Apex Court in the judgment and order
dated 26th August, 2020 in Civil Appeal No.
8300 of 2016 (Sanjay Singh and others vs.
State of Uttar Pradesh & others) read as
under:-

"12. We end with the hope that
we will never be faced with the aforesaid
situation again and the State Government
and the Commission will also make every
1298 INDIAN LAW REPORTS ALLAHABAD SERIES
endeavour to ensure that the order is
complied in its true intent and spirit and
specially
the
aspect
of
holding
examinations for the future taking into
consideration
all
current
and
future
vacancies reported as per rules is followed
in times to come. We need not emphasize
that education in a very important role
performed by a State apart from the area of
medical assistance to citizens and thus it is
necessary that the full benefit is extended to
the students which can only take place if
the full strength of teachers is available at
the requisite time. This in turn requires
compliance with the aforesaid directions
for the future.

13. Since there is always hope,
we hope for a better future.

14. The aforesaid exercise by the
Commission in consultation with the State
Government should be completed well in
time to ensure that at least in the session
commencing in July, 2021 all teachers up
to date are in place."

As
regards
the
process
of
amendment in the Appendix 'A', Chapter II
of the Regulations framed under the
Intermediate Education Act, it is contended
that the proposal of the Board of High
School
and
Intermediate
had
been
considered and it was sent back for
clarification in view of the inconsistency in
the qualification proposed by the Board.
The specific anomaly mentioned in the
'Note' forwarded to the Board has been
pointed out from the Annexure "S.C.A.-1"
to the short counter affidavit filed on behalf
of the State.

It
is
then
argued
that
the
petitioners being B.Tech Graduate cannot
seek selection to the post of Assistant
Teacher
(T.G.T.)
in
the
subjects
Mathematics and Science as they are not
eligible/qualified. The advertisement dated
15.3.2021 published by the Selection
Board, hence, cannot be quashed at the
instance of the petitioners.

8. To deal with the controversy at
hands, it would be appropriate to first note
the relevant provisions pertaining to the
field.

The Right of Children to Free and
Compulsory Act, 2009 (in short "R.T.E.
Act, 2009") has been enacted to provide
compulsory elementary education to all
children of the age of 6 to 14 years. Section
23(1) of the R.T.E. Act, 2009 provides that
for being eligible for appointment as a
teacher, any person must possess such
minimum qualifications as laid down by an
Academic Authority, authorised by the
Central Government, by notification. After
coming into operation of the R.T.E. Act,
2009, by the notification dated 23.8.2010,
the Central Government had appointed
NCTE (National Council of Teacher
Education) as the Academic Authority to
determine the qualification for appointment
of teachers so as to maintain the norms and
standards in the teaching education system.
The NCTE Amendment Act, 2011 was
enacted by the Parliament on 12th October,
2011 and was promulgated in the Official
Gazette on 12th November, 2014. The
expression "School" was inserted by Clause
(ka) in Section 2 of the Principal Act which
reads as under:-

"Section 2 (ka) "school" means
any recognised school imparting preprimary,
primary,
upper
primary,
secondary or senior secondary education,
or a college imparting senior secondary
education and includes-
9 All Gaurav Mishra & Ors. Vs. State of U.P. & Ors.
1299

(i) a school established, owned
and controlled by the Central Government,
or the State Government or a local
authority;

(ii) a school receiving aid or grants to meet
whole or part of its expenses from the
Central Government, the State Government
or a local authority;

(iii) a school not receiving any aid or
grants to meet whole or part of its expenses
from the Central Government, the State
Government or a local authority;"

Section
12-A
inserted
by
Amendment Act 18 of 2011 (w.e.f.
1.6.2012) reads:-

"12-A. Power of Council to
determine minimum standards of education
of school teachers.- For the purpose of
maintaining standards of education in
schools, the Council may, by regulations,
determine the qualifications of persons for
being recruited as teachers in any preprimary,
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:"

Pursuant
to
the
NCTE
Amendment Act, 2011, the Regulations
had been published in the Official
Gazette on 12th November, 2014, known
as the "Regulations of National Council
for Teacher Education (determination of
the qualifications for persons to be
recruited as education teachers and
physical education teachers in preprimary,
primary,
upper
primary,
secondary,
senior
secondary
or
intermediate
school
or
college)
Regulations 2014".

Clause
(2)
of
the
said
Regulations says that these regulations
shall be applicable for recruitment of
teachers
in
any
recognised
school
imparting pre-primary, primary, upper
primary, secondary, senior secondary or
intermediate
school
or
college
established and controlled by the Central
Government or a State Government or a
local or other authority as also the
schools which are recognised but not
receiving any grant or aid to meet out
their expenses.

Clause (4) of the Regulations
says
that
the
qualifications
for
recruitment of teachers in any recognised
school (noted above) shall be as given in
the First and Second Schedule(s) annexed
to these Regulations.

First
Schedule
provides
minimum academic and professional
qualifications for Secondary/High School
(For Classes IX-X) in Item No. (4) of the
table given therein, which provides as
under:-

"(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

(b) Graduate/Post Graduate from
recognized University with at least 45%
marks in either Graduation or Post
Graduation (or its equivalent and Bachelor
1300 INDIAN LAW REPORTS ALLAHABAD SERIES
of Education (B.Ed.) from National Council
for
Teacher
Education
recognized
institution [in accordance with the National
Council for Teacher Education (From 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".

9. Placing qualifications in Item No.
4(a) of the table in the First Schedule of
the Regulations 2014, it is argued by the
learned
Senior
Advocate
for
the
petitioners that the NCTE being the Apex
Academic body appointed by the Central
Government
had
determined
the
qualification for appointment to the post
of
Assistant
Teacher
(T.G.T.)
for
Secondary/High School (Classes IX & X)
as "Graduate from a recognized University
with at least 50% of the marks in
Graduation alongwith B.Ed. (Bachelor of
Education) degree from the institution
recognized by NCTE". The petitioners
having Graduate degree in B.Tech and
training qualification B.Ed. are, thus,
qualified. The Selection Board, however,
illegally excluded them from consideration
by
mentioning
specific
eligibility
qualifications as B.A./B.Sc. in the subjects
Mathematics
and
Science
in
the
advertisement, which is provided in
Appendix 'A' of Chapter II of the
Regulations framed under the Intermediate
Education Act, 1921.

Further submission is that the
Appendix 'A' of Chapter II of the
Regulations has
to be
appropriately
amended by the State Government to bring
it
in
conformity
with
the
NCTE
Regulations, 2014 as NCTE Regulations
will have an overriding effect over the
provisions of Appendix 'A' of Chapter II
of the Regulation framed under the Act,
1921.

10.

To
deal
with
the
said
submissions, we may note that the
appointment of teachers in High School
and Intermediate institutions in the State
of
U.P.
is
governed
by
the
U.P.
Intermediate Education Act which has
been enacted for the establishment of a
"Board of High School and Intermediate
Education" to regulate and supervise the
system
of
the
High
School
and
Intermediate Education in the State of
U.P. and prescribe courses therefor.
Section 15 of the said Act empowers the
Board of High School and Intermediate
Education to frame Regulations for the
purpose of carrying into the effect the
provisions of the Act, 1921. Section 16
provides that the Regulations framed by
the Board under Section 15 of the Act,
1921 shall be made by the Board only with
the
previous
sanction
of
the
State
Government and shall be published in the
Gazette. The regulations, under the Act,
1921, framed by the Board as contained in
Chapter II provide for appointment of
teachers
and
Heads
of
Institutions.
Regulation 1 of Chapter II states that the
minimum qualifications for appointment
as teachers in any recognized institution,
whether
by
direct
recruitment
or
9 All Gaurav Mishra & Ors. Vs. State of U.P. & Ors.
1301
otherwise, shall be as given in Appendix
'A'.

Appendix 'A' contains the minimum
qualifications for appointment of Assistant
Teachers for Classes IX & X and Classes
XI & XII. Entry '3' of Appendix 'A'
provides the minimum qualification for
Mathematics teacher for High School
(Classes IX-X). The educational training
experience prescribed therein is B.A. or
B.Sc. (Mathematics) and the desirable
qualification is 'Trained'. Similarly Entry
'33' provides minimum qualification for
Science teacher for High School (Classes
IX-X) as B.Sc. in Chemistry and Physics
(Educational Training Experience) and
trained (desirable qualification).

11. A comparison of the minimum
qualification
prescribed
for
Secondary/High School in Item No. '4' of
the table to NCTE Regulations, 2014 and
the Appendix-A in Chapter-II of the
Regulations framed under the Act, 1921
shows that for being appointed as Assistant
Teacher to teach subjects Mathematics and
Science for classes IX & X, a candidate has
to study upto Graduate or Post-Graduate
with Bachelor of Education (B.Ed.) as the
training qualification. This reveals that a
subject teacher has to be a graduate in the
relevant subject, i.e. he or she must have
studied the relevant subject (Mathematics
or Science) at least upto Graduation. The
B.A. or B.Sc. in the relevant subjects
Mathematics and Science, as prescribed
qualification in the Appendix-A of Chapter
II of the Regulations framed under the Act,
1921, therefore, cannot be said to be
inconsistent
with
the
qualification
prescribed in the NCTE Regulations, 2014.

12. The NCTE Act, 1993 is a law
relatable to Entry '66' of List-I of ScheduleVII of the Constitution of India which
empowers the Parliament to legislate for
coordination
and
determination
of
standards in the institutions for higher
education.
Whereas
the
Intermediate
Education Act is a legislation which is
referable
to
Entry
'25'
of
List-IIIConcurrent List, to be noted as under:-

"25.
Education,
including
technical education, medical education and
universities subject to the provisions of
entries 63, 64, 65 and 66 of List I;
vocational
and
technical
training
of
labour."

In
respect
to
the
field
"education", the State, thus, has power to
legislate, subject to the provisions of Entry
'66' of List-I.

13. First contention of the petitioners
is that since both the above legislations
operate in the same field, the field being
covered
by
the
Central
law,
the
qualifications prescribed in the State Act
being
not
in
conformity
with
the
Parliamentary Act is void.

Having
examined
both
the
provisions, we have noted that there is no
repugnancy as the subject "Education"
falling within the legislative competence of
the State is unquestionable. The attempt of
the State Legislature is to provide complete
measures and methodology to regulate and
supervise the system of High School and
Intermediate Education in the State. As is
seen from the legislative scheme, the
Regulations framed under the NCTE Act
provide the minimum standards to the
extent that a candidate for being appointed
to the post of Assistant Teacher at
Secondary School level must be at least a
Graduate and possess training qualification
1302 INDIAN LAW REPORTS ALLAHABAD SERIES
for teaching. Whereas, the Intermediate
Education Act ensures that a candidate to
be appointed as Assistant Teacher in a
subject must be well versed in the relevant
subject/discipline, in which he/she is
appointed to teach.

14. One of the settled principles to
examine the repugnancy or conflict between
the provisions of a law enacted by one
legislative constituent and the law enacted by
the other under the concurrent list, is to apply
the doctrine of pith and substance. The
purpose of applying this principle is to
examine, as a matter of fact, the nature and
character of the legislation in question. To
examine the 'pith and substance' of the
legislation, it is required for the Court to
examine the legislative scheme, object and
purpose of the Act and practical effect of its
provisions. After examining the statute and
its provisions as a whole, the Court has to
determine whether the field is already
covered. While examining these aspects, it
should be kept in mind that the legislative
constituent enacting the law has a legislative
competence with respect to Article 246
readwith the lists contained in Schedule-VII
to the Constitution. It is the result of this
collective analysis which will demonstrate
the pith and substance of the legislation and
its consequential effects upon the validity of
that law. [Reference Offshore Holdings
Private
Limited
vs.
Bangalore
Development Authority and others1]

15. T he Apex Court in Offshore
Holdings Private Limited (supra) has
noted its previous decision in Deep Chand
v. State of U.P.2, wherein the principles to
examine the repugnancy between the two
statutes were enunciated as under:-

"101.
While
examining
the
repugnancy between the two statutes, the
following principles were enunciated in the
case of Deep Chand v. State of U.P. [AIR
1959 SC 648]:

29.
(1)
There
may
be
inconsistency in the actual terms of the
competing statutes;

(2) Though there may be no
direct conflict, a State law may be
inoperative because the Commonwealth
law, or the award of the Commonwealth
Court, is intended to be a complete
exhaustive code; and

(3) Even in the absence of
intention, a conflict may arise when both
State and Commonwealth seek to exercise
their powers over the same subject matter."

It has further been held therein:-

"102. The repugnancy would
arise in the cases where both the pieces of
legislation deal with the same matter but
not where they deal with separate and
distinct matters, though of a cognate and
allied
character.
Where
the
State
legislature has enacted a law with
reference to a particular Entry with respect
to which, the Parliament has also enacted a
law and there is an irreconcilable conflict
between the two laws so enacted, the State
law will be a stillborn law and it must yield
in favour of the Central law. To the
doctrine of occupied/overlapping field,
resulting in repugnancy, the principle of
incidental encroachment would be an
exception".

16. Thus, the repugnancy between
two legislations, if is an irreconcilable
conflict, only then the Sate law must yield
in favour of the Central law. Keeping in
mind the doctrine of pith and substance,
9 All Gaurav Mishra & Ors. Vs. State of U.P. & Ors.
1303
having gone through the legislative scheme
of the Intermediate Education Act, 1921 (a
State legislature), suffice it to note that the
State Act is a self-contained code enacted
with a distinct and predominant purpose of
regulating and supervising the system of
High School and Intermediate Education in
the State of Uttar Pradesh. There is no
overlapping
between
two
legislations
resulting in any repugnancy.

For the above discussion, we are
also unable to persuade ourselves to accept
the submissions of the learned counsel for
the petitioners that the qualifications
prescribed in Entry '3' and '33' of Appendix
'A' for the post of Assistant Teachers
(T.G.T.) in subjects Mathematics and
Science
are
inconsistent
with
the
qualifications prescribed in Item No. 4 of
the Table in the First Schedule of the
NCTE Regulations, 2014. The challenge to
the said entries in Appendix 'A' of Chapter
II of the Regulations framed under the
Intermediate Education Act being ultra
vires to Section 12-A of the NCTE Act
readwith NCTE Regulations, 2014 is,
therefore, turned down.

17. Furthermore, we may note that the
Board of High School and Intermediate
Education, U.P. had forwarded a proposal
to the State Government for bringing the
qualifications prescribed in Appendix 'A' of
Chapter-II of the Regulations framed under
the Act, 1921 in line with the qualifications
prescribed in the First Schedule of the
NCTE Regulations, 2014, for appointment
to the post of Assistant Teachers in T.G.T.
grade. The qualifications prescribed in
NCTE
Regulations,
2014,
once
incorporated in Appendix 'A' of Chapter-II
of the Regulations framed under the Act,
1921 would result in addition of more
qualifications for appointment to the post
of Assistant Teacher. The qualifications
prescribed in Appendix 'A' at present would
remain as they are included in the proposed
amendment and they can neither be said to
be inconsistent nor irrelevant for the
appointment to the post of Assistant
Teacher
in
Secondary/High
School
institutions in the State of Uttar Pradesh.

It would be relevant to note at
this juncture that we are not faced with any
of such candidate in the present petition
who can claim that he has been excluded
from consideration though he possessed the
qualifications prescribed in the NCTE
Regulations, 2014.

18. The prayer of the petitioners
herein
is
to
treat
the
qualifications
possessed by them as equivalent to the
qualifications prescribed in the NCTE
Regulations, 2014. The assertions of the
learned Senior Advocate for the petitioners
is that the word "Graduate" mentioned in
the First Schedule of NCTE Regulations
being the prescribed qualification would
include "all Graduates" including those
who possessed B.Tech degree. We are
afraid to give such a wide meaning to the
word "Graduate". The reason being that
"the
Graduate"
incorporated
as
qualification in the NCTE Regulations is
the
prescribed
minimum
standard
educational qualification to be possessed by
a person for recruitment as Education
Teacher in a Secondary School. As per the
NCTE Regulations, 2014, a person who is
not a "graduate" cannot be treated as
qualified for recruitment to the post of
Assistant Teacher in a Secondary School.
For the subject teacher, however, there
cannot be a dispute that a person to be
recruited as a subject teacher at the
secondary school level must be well versed
with the subject which he/she is supposed
1304 INDIAN LAW REPORTS ALLAHABAD SERIES
to teach to the students of classes IX & X.
A teacher who does not have good
knowledge of the subject cannot clear all
doubts of his/her students or create interest
in his/her pupils about the subject. A
teacher's role in the lives of his/her
adolescent
students
cannot
be
underestimated. He not only teach but also
influences the choices of his/her pupils
about their career and goal in life. The
certification of academic and training
qualification of a candidate is to test the
attributes of the teacher in him. Every
candidate aspiring to become a teacher has
to be possess the qualification needed to
teach the subject.

As regards Mathematics and
Science, the subjects in question in the
present writ petition, a candidate having
studied B.A. & B.Sc. in the relevant subject
cannot but be treated to be qualified to
teach the said subjects to the students of
classes IX & X level, as per the scheme of
the
Regulations
framed
under
the
Intermediate
Education
Act,
1921
(Appendix 'A' in Chapter-II) as also the
NCTE Regulations, 2014.

As regards the B.Tech Course,
the
petitioners
who
had
completed
graduation
in
various
disciplines
of
Engineering may have studied Mathematics
and Science as one or two study papers in
the Five years course, but it is not possible
for the Court to hold that the B.Tech degree
is equivalent to the "Graduation" "(B.A. or
B.Sc. course)" in the subjects Mathematics
and Science.

19. As noted above, such a
comparison is not possible to be made by
the Court for the additional reason that the
complete syllabus of two courses is not
before us. Even otherwise, the comparison
of
syllabus
and
determination
of
equivalence to the two qualifications is
within the domain of the subject experts. It
is not possible for the Court to hold that the
"Graduates in various disciplines of B.Tech
course" which is a technical course, are
qualified for appointment to the posts of
Assistant
Teacher
in
the
subjects
Mathematics and Science.

We, therefore, cannot grant the
prayer in the writ petition to permit the
petitioners to participate in the selection in
question.

20. We may further note that taking
strong exceptions to the State of affairs in
the matter of appointment of teachers in the
state of Uttar Pradesh, the Apex Court in
Civil Appeal No. 8300 of 2016 (Sanjay
Singh and others vs. State of Uttar
Pradesh & others) had issued directions to
the State Government to complete the
process of selection of teachers/lectures at
T.G.T. and lecture level against all current
and future vacancies reported as per the
Rules, at least in the session commencing
in July, 2021 so that the full strength of
teachers is available to extend benefits to
the
students.
The
Apex
Court
had
disapproved the practice of making adhoc
appointments for a long time and noted that
this had created a mess in the education
system starting from primary level to the
highest education level, causing adverse
effect for the students who are in the need
to benefit from the best education process.

Consequently, as regards the
challenge to the advertisement in question
and the alternative prayer of the petitioners
to permit them provisionally to participate
in the selection in question, we do not find
any merit in the contentions of the
petitioners.
9 All Gaurav Mishra & Ors. Vs. State of U.P. & Ors.
1305

21.