# Harsh Kumar & Anr v. The State of U.P. and Ors

- **Citation:** (2014) 1 ILRA 146
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-02-05
- **Case number:** Special Appeal (D) No. 130 of 2014
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harsh-kumar-anr-v-the-state-of-u-p-and-ors-42957
- **Pages:** 7

## Headnote

High Court Rules-Chapter VIII Rule-V-
Special appeal against judgment by Single
Judge-dismissing petition-as the appellant,
do not possess requisite qualification for
Asst. teacher in primary school as per terms
of advertisement-rightly not consideredappeal
on
ground
when-appellant
possesses diploma in special education and
cleared TET as per requirement of Right of
children to free and compulsory education
Act, 2009-state government can not put
condition contrary to that-held-not open to
the state government to exclude from zone
of eligibility-otherwise qualified in term of
notification.

Held: Para-12&13

## Text

146 INDIAN LAW REPORTS ALLAHABAD SERIES
stated that the candidature could be
rejected if any discrepancy was found.
The learned Single Judge has also relied
upon a judgment of the Division Bench
rendered in Ram Manohar Yadav Vs.
State of U.P. & three Ors., (Special
Appeal-834 of 2013).

2. In the judgment of the Division
Bench in Ram Manohar Yadav (supra) it
was observed that where an applicant has
shown his incompetence or negligence in
not not even correctly filling up a simple
on line application form for employment,
interference of the High Court under
Article 226 of the Constitution was not
warranted.

3.

However,
learned
counsel
appearing on behalf of the appellant relied
upon a judgment of a Division Bench in
Puspraj Singh Vs. State of U.P. & Ors.,
(Special Appeal-75 of 2013). That is a
case where the appellant had wrongly
described himself as a female candidate.
On these facts, the Division Bench
accepted the contention that human error
had caused an incorrect on line entry,
since there was no reason for the
appellant to make such a declaration and
that he did not stand to gain anything by
making such an incorrect entry.

4. In the present case, the appellant
claimed the benefit of Freedom Fighters
category. The contention that this was as a
result of an error committed by the
Computer Operator cannot simply be
accepted for the reason that the appellant
would necessarily be responsible for any
statement which he made on line. If the
Courts were to accept such a plea of the
appellant, that would result in a situation
where the appellant would get the benefit
of a wrong category if the wrong claim
went unnoticed and if noticed, the
appellant could always turn around and
claim that this was as a result of human
error. Each candidate necessarily must
bear the consequences of his failure to fill
up the application form correctly. No fault
can, therefore, be found in rejecting the
application for correction when the
candidate himself has failed to make a
proper disclosure or where, as in the
present case, the application is submitted
under a wrong category. Interference of
the High Court under Article 226 of the
Constitution is clearly not warranted in
such
matters
as
it
creates
grave
uncertainty since the selection process
cannot be finally completed. Moreover, in
the present case, the appointment was of a
contractual nature for a period of eleven
months. Hence, considering the matter
from any perspective, the learned Single
Judge was not in error in dismissing the
petition
under
Article
226
of
the
Constitution.

5.

The
Special
Appeal
is,
accordingly, dismissed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2014

BEFORE
THE HON'BLE DR. DHANANJAYA
YESHWANT CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.

Special Appeal (D) No. 130 of 2014
alongwith Special Appeal No. 131 of 2014

Harsh Kumar & Anr.... Petitioners
Versus
The State of U.P. and Ors.....Respondents

Counsel for the Petitioner:
Sri Radha Kant Ojha, Sri Satyendra
Chandra
Tripathi
1 All] Harsh Kumar & Anr. Vs. The State of U.P. and Ors.
147
Counsel for the Respondents:
C.S.C., Sri R.P. Singh

High Court Rules-Chapter VIII Rule-V-
Special appeal against judgment by Single
Judge-dismissing petition-as the appellant,
do not possess requisite qualification for
Asst. teacher in primary school as per terms
of advertisement-rightly not consideredappeal
on
ground
when-appellant
possesses diploma in special education and
cleared TET as per requirement of Right of
children to free and compulsory education
Act, 2009-state government can not put
condition contrary to that-held-not open to
the state government to exclude from zone
of eligibility-otherwise qualified in term of
notification.

Held: Para-12&13
12. The qualifications, which have been
prescribed by the NCTE in the notification
dated
29
July
2011
include
Senior
Secondary with at least 50% marks
together
with
a
2-year
Diploma
in
Education (Special Education). Once, these
qualifications have been prescribed by the
NCTE, this would necessarily be binding
and it is not open to the State Government
to exclude (from the zone of eligibility) the
persons who are otherwise qualified in
terms of the notification dated 23 August
2010 as amended on 29 July 2011.

13. In this view of the matter, we are of
the opinion that the learned Single Judge
was in error in coming to the conclusion
that
since
the
recruitment
was
in
pursuance
of
a
special
drive,
the
Government was justified in confining the
eligibility qualifications only to those who
held the BTC qualifications for the reason
that such candidates could not be adjusted
earlier for want of TET qualification. The
passing of the TET was introduced as a
mandatory requirement by the notification
dated 23 August 2010 issued by the NCTE.
Persons who did not fulfill the eligibility
conditions prescribed in the notification
dated 23 August 2010, as amended on 29
July
2011,
were
not
qualified
for
consideration for appointment as primary
school teachers. Hence, there was no
occasion for the State to contend or for
that matter the learned Single Judge to
accept the submission that in order to
adjust such BTC qualified candidates, the
present advertisement had been issued.
The learned Single Judge held that the
appellants could not claim equivalence
with those candidates who possess BTC
qualification. This, in our view, begs the
question because once the Diploma in
Education (Special Education) is held to be
a qualification which is recognised for
appointment of Assistant Teachers for
teaching Classes I to V, it would be
impermissible for the State Government to
exclude them from being considered for
appointment.
In
a
special
drive
or
otherwise, it is not open to the State
Government to exclude one class of
teachers who fulfill the qualifications for
eligibility prescribed by the NCTE. Any such
action would be impermissible for the
simple reason that the exclusive power to
prescribe eligibility qualifications for such
teachers is vested in the NCTE. Once the
NCTE has spoken on the subject, as it has
through
its
notification,
those
qualifications must govern the eligibility
requirement. Jurisdiction and power of the
NCTE to do so is now settled beyond any
doubt, as noted by the Supreme Court.

Case Law discussed:
[2013(6)ADJ 310 (FB)]; (2008) 3 SCC 432;
Special Appeal No. 1234 of 2013.

(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)

1. Both these special appeals arise
from a judgment and order of the learned
Single Judge dated 14 November 2013 by
which the petitions filed by the appellants
under Article 226 of the Constitution have
been dismissed.

2. The appellants claim that all of
them have acquired the qualification of a
Diploma in Education (Special Education)
148 INDIAN LAW REPORTS ALLAHABAD SERIES
(DEd) and have successfully cleared the
Teachers Eligibility Test (TET) and are
eligible for appointment to the post of
Assistant Teachers in primary schools. On
15 October 2013, the State Government
issued a Government Order in regard to
the selection/appointment of Assistant
Teachers in the Primary Schools run by
the Basic Shiksha Parishad as part of a
special drive for the recruitment of ten
thousand
teachers.
The
minimum
educational qualifications prescribed in
the
Government
Order
for
the
appointment of Assistant Teachers in
Primary Schools, are:

(i) A Bachelor's Degree from a
University established by law in India;

(ii) A two years BTC Training or a
two years BTC Training (Urdu) or a
Special BTC Training; and

(iii) The passing of any Teacher
Eligibility Test to be conducted by the
State Government or by the Central
Government.

3. The appellants challenged the
Government Order dated 15 October 2013
as well as an advertisement that was
issued by the District Basic Education
Officer in terms of the said Government
Order and sought a mandamus permitting
them to apply for appointment on the post
of Assistant Teachers in primary schools.

4. The contention of the appellants
was that in view of notifications that were
issued by the National Council for
Teacher Education (NCTE) on 23 August
2010 and 29 July 2011, the minimum
qualifications have been prescribed by the
NCTE for appointment of Assistant
Teachers in primary schools for Classes I
to V. Consequently, it was submitted that
in view of the notifications which have
been issued by the NCTE under the
legislation enacted by Parliament, the
qualifications, as prescribed therein must
prevail and, hence, it was not open to the
State Government to exclude persons,
such as the appellants who hold the
Diploma
in
Education
(Special
Education),
which
is
otherwise
recognized as an eligible qualification for
appointment as Assistant Teachers in
primary schools for teaching Classes I to
V. In this regard, reliance was placed on a
judgment of a Full Bench of this Court in
Shiv Kumar Sharma Vs. State of U.P. &
Ors.1, in which it was held that the
notification dated 23 August 2010 of the
NCTE would have an overriding effect
and could not have been ignored.

5. The learned Single Judge declined
to accept the contention and by the
judgment which is called in question in
this appeal, held that the advertisement in
question was in pursuance of a special
drive that was initiated by the State
Government for the recruitment of BTC
qualified teachers who could not be given
appointments
as
Assistant
Teachers
despite having completed the training,
whether before or after 23 August 2010,
on account of the fact that after the
enactment of the Right of Children to
Free and Compulsory Education Act,
2009 (in short 'the Act of 2009'), and the
qualifications prescribed by the NCTE in
its notification dated 23 August 2010 it
was mandatory to pass the TET. Hence,
according to the learned Single Judge,
since a special drive was initiated for
filling up the ten thousand vacant posts
with a view to adjust such BTC qualified
candidates who could not be recruited for
want of TET qualification, the appellants
1 All] Harsh Kumar & Anr. Vs. The State of U.P. and Ors.
149
could have no legitimate grievance.
According to the learned Single Judge,
the appellants could not be treated at par
with candidates who are BTC qualified
and for whom the special drive was
initiated
and
there
was
no
unreasonableness on the part of the
Government
in
prescribing
the
qualification as set out in the Government
Order which was challenged.

6. Assailing the judgment of the
learned Single Judge, it has been urged on
behalf of the appellants that upon the
enactment of the National Council for
Teacher Education (Amendment) Act,
2011 which came into force on 1 June
2012,
the
minimum
educational
qualifications
prescribed
for
the
recruitment of Assistant Teachers in
primary schools in the notifications dated
23 August 2010 and 29 July 2011 issued
by the NCTE are binding and persons
who hold a qualification, which is
recognized under the said notifications
issued by the NCTE, cannot be excluded
from consideration even if the recruitment
is in pursuance of a special drive. It has,
therefore, been submitted that confining
the zone of eligibility only to the BTC
qualified candidates would be clearly
contrary to the notifications which have
been issued by the NCTE and the learned
Single Judge was in error in ignoring the
judgment of the Full Bench of this Court
in Shiv Kumar Sharma (supra).

7. On the other hand, it has been
urged on behalf of the respondents that in
the State of Uttar Pradesh, Rule 8 (ii) of
the
Uttar
Pradesh
Basic
Education
(Teachers) Service Rules, 1981 prescribes
the essential qualifications of candidates
for appointment as Assistant Teachers in
Junior Basic School (which means a Basic
School where instructions are imparted
from Class I to V) and there was no
challenge to the validity of Rule 8.
Moreover, it was submitted that in the
present
case,
a
special
drive
was
conducted by the State Government since
those BTC qualified candidates who had
completed the training, whether before or
after 23 August 2010, were unable to be
appointed. Finally, it was urged that the
DEd qualification cannot be regarded as a
qualification which is at par with the BTC
qualification.

8. On 23 August 2010, the NCTE
prescribed the minimum qualifications for
a person to be eligible for appointment as
a teacher for Classes I to VIII in a school
referred to in Section 2 (n) of the Act of
2009 with effect from the date of
notification.
This
notification
was
amended by the notification dated 29 July
2011. As per the amended notification,
the minimum qualifications which have
been prescribed for appointment of an
Assistant Teacher for teaching students
from Classes I to V are now as follows:

"(i) Classes I-V.

(a)
Senior
Secondary
(or
its
equivalent) with at least 50% marks and
2-year Diploma in Elementary Education
(by whatever name known)
OR
Senior Secondary (or its equivalent) with
at least 45% marks and 2-year Diploma in
Elementary Education (by whatever name
known), in accordance with the NCTE
(Recognition
Norms
and
Procedure)
Regulations, 2002
OR
Senior Secondary (or its equivalent) with
at least 50% marks and 4-year Bachelor
of Elementary Education (B.El.Ed.)
150 INDIAN LAW REPORTS ALLAHABAD SERIES
OR
Senior Secondary (or its equivalent) with
at least 50% marks and 2-year Diploma in
Education (Special Education)
OR
Graduate and two year Diploma in
Elementary Education (by whatever name
known)
AND
(b) Pass in the Teacher Eligibility Test
(TET), to be conducted by the appropriate
Government in accordance with the
Guidelines framed by the NCTE for the
purpose."

9. At this stage, it may also be
necessary to note that the Parliament enacted
the National Council for Teacher Education
(Amendment) Act, 2011 to provide that the
Act shall apply, inter-alia, to schools
imparting
pre-primary,
primary,
upper
primary, secondary or senior secondary
education and to colleges providing senior
secondary or intermediate education and to
teachers of such schools and colleges.
Similarly, the expression 'school' was defined
in Section 2(ka) to mean any recognised
school imparting pre-primary, primary, upper
primary, secondary or senior secondary
education, or a college imparting senior
secondary education. Section 12A was
inserted into the principal legislation to
empower the NCTE to determine the
qualifications of persons to be recruited as
teachers in any pre-primary, primary, upper
primary, secondary, senior secondary or
intermediate school or college, by whatever
name called, established, run, aided or
recognised by the Central Government or by
a State Government or a local or other
authority. The provisions of the Act and
Regulations have been held to be binding by
a Full Bench of this Court in Shiv Kumar
Sharma (supra). Prior to the enforcement of
the amending Act, the Supreme Court had
referred for consideration by a larger Bench
of three Hon'ble Judges, an earlier view
taken in Basic Education Board, U.P. Vs.
Upendra Rai & Ors.2 in which it had been
held that the NCTE Act does not deal with
ordinary educational institutions like primary
schools, high schools, intermediate colleges
or universities and would, consequently, not
override the U.P. Basic Education Act and
the Rules made thereunder. In view of the
amending Act, a Bench of three learned
Judges of the Supreme Court, while deciding
the reference on the correctness of the view
in Upendra Rai (supra), observed that during
the pendency of the appeals, the Amending
Act had rendered the issues for consideration
referred to the larger Bench as academic.
These developments have been taken due
note of in a recent judgment of a Full Bench
of this Court in Ram Surat Yadav & Ors. Vs.
State of U.P. & Ors.3

10. Thus, the point to be noted is
that after the enforcement of the Act of
2009 and the issuance of the notification
of 23 August 2010, the qualifications
which
have
been
prescribed
for
appointment of primary teachers must
necessarily be those that are stipulated in
the notification dated 23 August 2010, as
amended by the notification dated 27
August 2011.

11. Undoubtedly, the Rules of 1981
do prescribe the essential qualification for
appointment of Assistant Teachers in
Junior Basic Schools where education is
imparted from Classes I to V. The
relevant
qualifications
which
are
prescribed in Rule 8 are as follows:

"(ii) Assistant Master and Assistant
Mistress of Junior Basic School

A
Bachelor's
Degree
from
a
University established by law in India or a
1 All] Harsh Kumar & Anr. Vs. The State of U.P. and Ors.
151
Degree recognised by the Government as
equivalent thereto together with the
training qualification consisting of a Basic
Teacher's
Certificate,
Vishist
Basic
Teachers Certificate (B.T.C.) two years
BTC Urdu Special Training Course,
Hindustani Teacher's Certificate, Junior
Teacher's
Certificate,
Certificate
of
Teaching or any other training training
course recognised by the Government as
equivalent there:

Provided
that
the
essential
qualification for a candidate who has
passed the required training course shall
be the same which was prescribed for
admission to the said training course."

12. The qualifications, which have
been prescribed by the NCTE in the
notification dated 29 July 2011 include
Senior Secondary with at least 50% marks
together with a 2-year Diploma in
Education (Special Education). Once,
these qualifications have been prescribed
by the NCTE, this would necessarily be
binding and it is not open to the State
Government to exclude (from the zone of
eligibility) the persons who are otherwise
qualified in terms of the notification dated
23 August 2010 as amended on 29 July
2011.

13. In this view of the matter, we are
of the opinion that the learned Single
Judge was in error in coming to the
conclusion that since the recruitment was
in pursuance of a special drive, the
Government was justified in confining the
eligibility qualifications only to those who
held the BTC qualifications for the reason
that such candidates could not be adjusted
earlier for want of TET qualification. The
passing of the TET was introduced as a
mandatory requirement by the notification
dated 23 August 2010 issued by the
NCTE. Persons who did not fulfill the
eligibility conditions prescribed in the
notification dated 23 August 2010, as
amended on 29 July 2011, were not
qualified
for
consideration
for
appointment as primary school teachers.
Hence, there was no occasion for the State
to contend or for that matter the learned
Single Judge to accept the submission that
in order to adjust such BTC qualified
candidates, the present advertisement had
been issued. The learned Single Judge
held that the appellants could not claim
equivalence with those candidates who
possess BTC qualification. This, in our
view, begs the question because once the
Diploma in Education (Special Education)
is held to be a qualification which is
recognised for appointment of Assistant
Teachers for teaching Classes I to V, it
would be impermissible for the State
Government to exclude them from being
considered for appointment. In a special
drive or otherwise, it is not open to the
State Government to exclude one class of
teachers who fulfill the qualifications for
eligibility prescribed by the NCTE. Any
such action would be impermissible for
the simple reason that the exclusive power
to prescribe eligibility qualifications for
such teachers is vested in the NCTE.
Once the NCTE has spoken on the
subject, as it has through its notification,
those qualifications must govern the
eligibility requirement. Jurisdiction and
power of the NCTE to do so is now
settled beyond any doubt, as noted by the
Supreme Court.

14. In the circumstances, the special
appeals would have to be allowed and are,
accordingly, allowed. The impugned
judgment and order of the learned Single
Judge dated 14 November 2013 is set
152 INDIAN LAW REPORTS ALLAHABAD SERIES
aside. A mandamus would, accordingly,
issue directing the State to permit the
appellants and such other persons who
claim to be holding the qualifications
which are within the purview of the
notification issued by the NCTE on 23
August 2010, as amended on 29 July
2011, to apply for the post of Assistant
Teachers for Classes I to V which was the
subject matter of the advertisement in
question.

15. Since the Court is informed that
the process of counseling is still to
commence,
we
direct
the
State
Government to act in accordance with the
aforesaid direction in processing and
completing the selection process.

16. We clarify that the issue as to
whether
the
appellants
hold
the
qualifications strictly in accordance with
the notification issued by the NCTE has
not been decided by us since that is a
matter of verification by the authority
concerned.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.02.2014

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ASHOK PAL SINGH, J.

First Appeal from Order (D) No. 172 of
2009

Oriental Insurance Comp. Ltd. Lko..Appellant
Versus
Smt. Urmila Singh.... Respondent

Counsel for the Petitioner:
Sri T.K. Misra

Counsel for the Respondents:
Sri B.R. Singh
(A)Motor Vehicle Act 1988-Section 173Appeal against-award of accident claim
tribunal-on
ground
of
contributory
negligence-as deceased was driving motor
cycle under influence of intoxication-heldbody of deceased crushed under the tyre
of truck-deceased were going to attained
Tehsil Diwas-where so many district level
higher
authorities
participated-hence
theory
of
consuming
liquor-not
acceptable-more
over
in
postmortem
report do not support the story of
intoxication-in
absence
of
direct
or
corroborative evidence-no inference of
contributory negligence can be drawn.

Held: Para-7
Now, coming to the second limb of
argument of learned counsel for the
appellant that the deceased and the driver
of the motorcycle were in intoxicated state
of mind also seems to be not sustainable.
Admittedly, they both were going to
attend
Tehsil
Diwas
in
the
Tehsil
concerned, and it will be difficult to believe
that a government employee would go to
discharge his duty during the Tehsil Divas
which is also ordinarily attended by Higher
Authorities in an inebriated state. Apart
from this it is also not borne out from the
post-mortem report of the deceased that
he had consumed liquor. In the absence of
any material evidence and keeping in view
the surrounding facts and circumstances of
the case, argument advanced by the
learned counsel for appellant seems to be
not sustainable.

(B)Award of Penal interest- Tribunal
awarded 6% interest within specified
period-in case of default penal interest
enhance 9% retrospectively-held-in case
of default-enhanced amount of interest of
9% payable from the date of default
prospectively-accordingly award modified.

Held: Para-13
In view of above to the extent discussed
hereinabove, the impugned award requires
modification. Accordingly, the appeal is
allowed partly. The impugned award dated
27.9.2008 is modified to the extent that