# Jitendra Kumar Soni and others v. State of U.P. and others

- **Citation:** (2010) 3 ILRA 951
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-06
- **Case number:** Civil Misc. Writ Petition No. 3733 of 2009
- **Bench:** F.I. Rebello, C.J. A.P. Sahi, S.K. Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-kumar-soni-and-others-v-state-of-u-p-and-others-41756
- **Pages:** 16

## Headnote

Constitution of India Article 226,14,254Education-Admission
to
special
BTC
course-exclusion by the State Court of
degree
diploma/certificate
in
LT/B.P.Ed/D.P.Ed/C.P.Ed
from
institutions/university duly recognised
by the NCTE, but situate outside Uttar
Pradesh-Held,all institutions imparting
training courses approved by the NCTE
are a class by themselves-no distinction
can be made by State Governmentnotification imposing restriction held
unreasonable, violation of Article 14-
952 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
such
candidates,petitions
pending
eligible for being considered for special
BTC
courses-all
judgements
to
the
contrary overruled.

Held: Para 28 and 29

Once that be the case, it must follow the
degree/diploma/ certificate, if obtained
from an institution recognized by the
NCTE, may be from the State of Madhya
Pradesh, that degree/diploma/certificate
would entitle a person, who possesses it,
to apply for admission to Special B.T.C.
Course or the B.T.C. Course itself. That
the Special B.T.C. Course was started for
the purpose of filling in the vacancies of
teachers, who possess the Special B.T.C.
certificate, is irrelevant.

We may now answer the reference:

(1) In answer to Question No.(a), it is
not open to the State or the State
authorities to exclude the students, who
have
obtained
degree/diploma/certificate
in
LT/B.P.Ed./D.P.Ed./C.P.Ed.
from
Institutions/Universities established by
law situate at place outside the State of
Uttar Pradesh and duly recognized by the
NCTE, from applying either for the
Special B.T.C. Course or B.T.C. Course.
Any such exclusion is illegal. Question
No, (a) is answered, accordingly.

(2)
Insofar
as
Question
No.(b)
is
concerned, the classification, if any, is
unreasonable and violative of Article 14
of the Constitution of India. At any rate,
the only ground given by the State
Government for not putting restriction
on B.Ed. degree, and putting restriction
on LT/B.P.Ed./D.P.Ed./C.P.Ed., is not
sustainable in terms of the rules of
N.C.T.E., as the admission can only be
based on merit.

(3)
Insofar
as
Question
No.(c)
is
concerned,
the
judgement
in
Vijay
Kumar Kushwaha (supra) did not answer
the issue of admission to Special B.T.C.
Course, but dealt with the issue of
appointment to the post of Assistant
Teacher. Even otherwise, considering the
findings on question nos.(a) & (b), we
will have to hold that the judgement in
Vijay Kumar Kushwaha does not lay
down the correct law.
Case law discussed:
2002 (2) UPLBEC 1340, 2008 (3) UPLBEC 432,
2008 (1) UPLBEC 641, 2009 STPL(Web) 174
SC, 2005 (5) SCC 172, 2006 (9) SCC 1, 2000
(5) SCC 231, AIR 1982 SSC 933, 1989 (2) SCC
250, 1995 (4) SCC 104, 1996 (3) SCC 15,
CMWP No.3733/2009, CMWP No.2856 (M/S)
of 2004, CMWP No. 2933/2004, CMWP No.
27948/1999, CMWP No. 29107/1999, 2003 (3)
UPLBEC 2211

## Text

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3 All] Jitendra Kumar Soni and others V. State of U.P. and others
951
Court, this Court in the case of Rajol v.
State of U.P., 2010(5) ADJ 628 has
observed in para 22 as follows:

"22. In the cases of Sarabjeet (Supra),
Brindawan Das, Michael Machado (supra)
and Krishnappa (supra), it has been clearly
held that summoning order should be passed
only when the evidence, if uncontroverted, is
of such a nature as to reasonably lead to
conviction of the person sought to be
summoned. The standard of evidence
required for summoning an additional
accused should be higher than the evidence
required for framing charges because the
jurisdiction under section 319 CrPC is to be
exercised sparingly in an extra ordinary
situation. Whether or not any evidence is of
such a quality as to record conviction if it
remains uncontroverted, is a variable
question depending upon the facts and
circumstances of each case and no hard and
fast rule can be laid down in this regard.
However, the court considering the evidence
for the purpose of section 319 CrPC is not
legally required to evaluate the evidence as it
is ordinarily done while rendering the final
judgment but the court has to see whether or
not, the evidence on record appeals to the
reason for the purposes of section 319 CrPC
and the story narrated by the witnesses
against the person sought to be summoned is
not improbable and absurd and a conviction
is
possible
on
such
statements,
if
uncontroverted. A non observance of this
legal
requirement
would
render
the
summoning order illegal."

12. In the present case, no doubt the
learned Additional Sessions Judge has
passed a detailed order but he nowhere
recorded any specific finding whether or not
the evidence adduced in support of the
application filed under section 319 CrPC, if
uncontroverted, would reasonably lead to
conviction of the revisionists. In absence of a
finding in this perspective, the summoning
order can not be upheld.

13. For the reasons discussed above,
the revision is allowed. The impugned order
dated 6.8.2010 is set aside. The learned
Additional Sessions Judge is directed to
reconsider the application filed under section
319 CrPC in the light of the observations
made hereinabove and pass an appropriate
order afresh in accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2010

BEFORE
THE HON'BLE F.I. REBELLO, C.J.
THE HON'BLE A.P. SAHI, J.
THE HON'BLE S.K. GUPTA, J.

Civil Misc. Writ Petition No. 3733 of 2009

Jitendra Kumar Soni and others

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare,

Counsel for the Respondents:
Sri V.K. Singh,
Sri C.K. Rai,

Constitution of India Article 226,14,254Education-Admission
to
special
BTC
course-exclusion by the State Court of
degree
diploma/certificate
in
LT/B.P.Ed/D.P.Ed/C.P.Ed
from
institutions/university duly recognised
by the NCTE, but situate outside Uttar
Pradesh-Held,all institutions imparting
training courses approved by the NCTE
are a class by themselves-no distinction
can be made by State Governmentnotification imposing restriction held
unreasonable, violation of Article 14-
952 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
such
candidates,petitions
pending
eligible for being considered for special
BTC
courses-all
judgements
to
the
contrary overruled.

Held: Para 28 and 29

Once that be the case, it must follow the
degree/diploma/ certificate, if obtained
from an institution recognized by the
NCTE, may be from the State of Madhya
Pradesh, that degree/diploma/certificate
would entitle a person, who possesses it,
to apply for admission to Special B.T.C.
Course or the B.T.C. Course itself. That
the Special B.T.C. Course was started for
the purpose of filling in the vacancies of
teachers, who possess the Special B.T.C.
certificate, is irrelevant.

We may now answer the reference:

(1) In answer to Question No.(a), it is
not open to the State or the State
authorities to exclude the students, who
have
obtained
degree/diploma/certificate
in
LT/B.P.Ed./D.P.Ed./C.P.Ed.
from
Institutions/Universities established by
law situate at place outside the State of
Uttar Pradesh and duly recognized by the
NCTE, from applying either for the
Special B.T.C. Course or B.T.C. Course.
Any such exclusion is illegal. Question
No, (a) is answered, accordingly.

(2)
Insofar
as
Question
No.(b)
is
concerned, the classification, if any, is
unreasonable and violative of Article 14
of the Constitution of India. At any rate,
the only ground given by the State
Government for not putting restriction
on B.Ed. degree, and putting restriction
on LT/B.P.Ed./D.P.Ed./C.P.Ed., is not
sustainable in terms of the rules of
N.C.T.E., as the admission can only be
based on merit.

(3)
Insofar
as
Question
No.(c)
is
concerned,
the
judgement
in
Vijay
Kumar Kushwaha (supra) did not answer
the issue of admission to Special B.T.C.
Course, but dealt with the issue of
appointment to the post of Assistant
Teacher. Even otherwise, considering the
findings on question nos.(a) & (b), we
will have to hold that the judgement in
Vijay Kumar Kushwaha does not lay
down the correct law.
Case law discussed:
2002 (2) UPLBEC 1340, 2008 (3) UPLBEC 432,
2008 (1) UPLBEC 641, 2009 STPL(Web) 174
SC, 2005 (5) SCC 172, 2006 (9) SCC 1, 2000
(5) SCC 231, AIR 1982 SSC 933, 1989 (2) SCC
250, 1995 (4) SCC 104, 1996 (3) SCC 15,
CMWP No.3733/2009, CMWP No.2856 (M/S)
of 2004, CMWP No. 2933/2004, CMWP No.
27948/1999, CMWP No. 29107/1999, 2003 (3)
UPLBEC 2211

(Delivered by: Justice F.I. Rebello, C.J.)

1. The questions referred to this Full
Bench and which we have re-framed for
consideration are;

(a) Whether the degree obtained by a
student from an institution/university
established by law, situate at a place out
side the State of Uttar Pradesh but duly
recognized by the N.C.T.E. can be refused
acceptance as valid qualification for being
admitted to Special B.T.C. Course- 2008
by the State?

(b) Whether the classification under
the Government Order between the
degree of B.Ed. obtained from other State
being valid for admission to B.T.C.
Course-2008, while the degree of C.P.Ed.,
B.P.Ed. and D.P.Ed. similarly obtained
from the institutions situate outside the
State of Uttar Pradesh being invalid for
considered for admission to B.T.C.
Course-2008 is arbitrary and without any
reasonable rational and therefore hit by
Article 14 of the Constitution of India?

(c) Whether the Division Bench
judgment in the case of Vijay Kumar
3 All] Jitendra Kumar Soni and others V. State of U.P. and others
953
Kushwaha & Ors. Vs. State of U.P. &
Ors. (2003) 3 UPLBEC 2211 lays down
the correct law?

2. A learned Single Judge of this
Court, while hearing the writ petition of
applicants, who had applied for admission
to Special B.T.C. Course, 2007 in
Jitendra Kumar Soni and others Vs.
State of U.P. & Others in Civil Misc.
Writ Petition No.3733 of 2009, noted that
their candidature had been rejected only
on the ground that they had obtained a
degree of Bachelor of Physical Education
(B.P.Ed.)/Diploma of Physical Education
(D.P.Ed.) from the colleges/University
situate outside the State of Uttar Pradesh
in view of the terms and conditions of the
Government Order dated 14th November,
2008, regulating admission to B.T.C.
Course-2007. By that order, only the
students,
who
had
passed
their
B.P.Ed./D.P.Ed. from the institutions
situate in the State of Uttar Pradesh were
alone entitled to apply for Special B.T.C.-
2007. This condition was challenged
before the learned Single Judge on
various
grounds,
which
can
be
enumerated as under:-

"(a) The degree obtained by the
petitioners
is
from
a
recognized
University established by law, although
situate outside the State of Uttar Pradesh.
Such degree cannot be discriminated viza-viz the degree granted by an University
of the State of Uttar Pradesh. It is,
therefore, submitted that the classification
itself is arbitrary. Reference in that regard
has been made to the judgment of the
Hon'ble Supreme Court in the case of Dr.
B.L. Asawa v. State of Rajasthan and
others, reported in AIR 1982 SC 933
(Para 10).

(b) It is contended that the condition
imposed, referred to above, results in
complete exclusion of students, who have
obtained identical qualification from the
Universities outside the State of Uttar
Pradesh. He submits that although the
State can exercise preference in respect of
the students, who have obtained degree
from the institutions within the State of
Uttar Pradesh, but such preference cannot
be so extensive so as to completely
exclude all the students, who have
obtained degree from the institution of
other States, i.e. total exclusion. In
support thereof he has placed reliance
upon the judgment of the Hon'ble
Supreme Court in the case of Dr. Sachin
D. Kulkarni and others v. State of
Maharashtra and others, reported in
(1989) 2 SCC 250.

(c)
There
is
no
reasonable
justification for accepting the degree of
B.Ed. granted by the Universities situate
outside the State, while refusing the
B.P.Ed., C.P.Ed. and D.P.Ed. degree
granted by University situate outside the
State. It is stated that in some cases the
B.Ed. and B.P.Ed. and D.P.Ed. degrees
have been granted by the same University
situate outside the State."

On behalf of the State, reliance was
placed on the judgment in the case of
Rajeshwar Singh Vs. State of U.P. &
Others (Writ Petition No.2856 (M/S) of
2004, where the following question was
referred for consideration of the Full
Bench:-

"1. In Upendra Rai's case reported in
2000 (2) UPLBEC 1340, the Division
Bench of this Court has held that the
restrictions
imposed
by
the
State
Government are not valid and B.T.C.
954 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Certificate for appointment on the post of
Assistant Teacher issued by an institute
situated outside the State of U. P. but
recognized by the N.C.T.E. is valid. The
other Division Bench's judgment of this
Court reported in (2003) 3 UPLBEC 2211
in Vijay Kumar Kushwaha's case, upheld
the
government
rights
as
well
as
Government Order which provides that
the State has got right not to admit a
candidate for appointment as Assistant
Teacher in case the training certificate is
provided by an institute situated outside
the State of U.P. The proposition of law
as per Vijay Kumar Kushwaha's case have
been reiterated in Lalit Kumar Dixit's case
reported in (2004) 1 UPLBEC 754 which
division bench out of two lay down the
correct law?"

The Full Bench noted that the
Supreme Court in the case of U.P. Basic
Education Board vs. Upendra Rai,
reported in (2008) 1 UPLBEC 641 has
reversed the judgment of this Court in the
case of Upendra Rai (supra) and upheld
the finding of the Division Bench in
Kushwaha's case (supra).

It was contended before the Full
Bench that since the special leave petition
filed by the Board has been allowed and
the judgment and order of the Division
Bench of this Court in the case of
Upendra Rai has been reversed, it
logically follows that law laid down in the
case of Vijay Kumar Kushwaha (supra) is
the correct law and, therefore, in terms of
the judgment of the Division Bench in the
case of Vijay Kumar Kushwaha (supra)
the
restriction
imposed
under
the
Government Order qua non-consideration
of the candidates, who have obtained
C.P.Ed.
and
B.P.Ed.
Degree,
from
Institutions from outside the State of Uttar
Pradesh, has to be upheld. Reference has
also been made to the judgment of the
Hon'ble Single Judge in the case of Hena
Afroj Vs. State of Uttar Pradesh &
Others in Writ Petition No.2933 of 2004,
wherein similar restriction in respect of
B.T.C. Course -2004 has been upheld.

Standing Counsel further submitted
that it is within the competence of the
State to lay down the policy guidelines for
admission to Special B.T.C. Course 2008.
The State in its wisdom has decided to
consider only those candidates who have
obtained C.P.Ed., B.P.Ed. and D.P.Ed.
degree from the institutions situate within
the State of Uttar Pradesh. Such policy
decision cannot be examined under
Article 226 of the Constitution of India
nor can it be said to be violative of Article
14 of the Constitution of India, as has
been held by the Division Bench of this
Court in the case of Viijay Kumar
Kushwaha.

The learned Single Judge after
having considered the arguments and the
judgment of the Supreme Court in the
case of U.P. Basic Education Board
(supra) was pleased to note that one
aspect still requires consideration, which
reads as under:-

"The issue as to whether the State is
competent to put any such restriction and
as to whether when there is no such
restriction with regard to the candidates
who have obtained the B.Ed. degree from
out side the State of Uttar Pradesh could
the B.P.Ed., C.P.Ed. and D.P.Ed. be
excluded has arisen for consideration in
this case. The question which has been
referred to in the Full Bench has direct
bearing on the issues which have been
raised in this writ petition. When the
3 All] Jitendra Kumar Soni and others V. State of U.P. and others
955
issues which have arisen for consideration
in this case have already been referred to
the Full Bench, it is appropriate that these
writ petitions be finally decided after the
above reference is answered." From a
reading of the judgment of the Division
Bench in the case of Vijay Kumar
Kushwaha as well as the judgment of the
Hon'ble Supreme Court in the case of
U.P. Basic Education Board Vs. Upendra
Rai, this Court finds that the issue, as
noticed above, has not been examined and
the competence of the State Government
to impose such restrictions in respect of
the B.P.Ed., C.P.Ed., and D.P.Ed. degree
only while accepting the B.Ed. degree
granted by out of State Universities still
needs to be examined."

Accordingly, the learned Single
Judge, made the reference of the first two
questions, which we have re-produced
earlier.

3. The matter was placed before a
learned Division Bench. That Division
Bench was pleased to note that the
judgment in Vijay Kumar Kushwaha
Vs. State of U.P. & Ors., reported in
(2003) 3 UPLBEC 2211, which had
upheld the restrictions imposed by the
Government Order for admission to
B.T.C. course was required to be reconsidered for the reasons set out therein
and accordingly, referred a 3rd question
and in view of that, the matter was placed
before the Chief Justice, for constituting a
Larger Bench.

4. At the hearing of this reference,
"Whether the degree obtained by a student
from an institution/university established
by law, situate at a place out side the State
of Uttar Pradesh but duly recognized by
the N.C.T.E. can be refused acceptance as
valid qualification for being admitted to
Special B.T.C. Course-2008 by the
State?" various contentions have been
urged. It has also been contended that
Question (a) is restricted only to B.T.C.
Course-2008, whereas there are petitions
pending in this Court in respect of similar
notification for the B.T.C. Course-2004
and B.T.C. Course-2007, therefore, we
ought to re-frame question (a), so that the
issue is answered in all the writ petitions,
as the contentions advanced are the same.
Question (a) as referred, reads as under:-

"(a) Whether the degree obtained by
a student from an institution/university
established by law, situate at a place out
side the State of Uttar Pradesh but duly
recognized by the N.C.T.E. can be refused
acceptance as valid qualification for being
admitted to Special B.T.C. Course- 2008
by the State?"

With the consent of the learned
counsel for the parties, we have re-framed
question (a), as under:-

"(a) Whether the degree obtained by
a student from an institution/university
established by law, situate at a place out
side the State of Uttar Pradesh but duly
recognized by the N.C.T.E. can be refused
acceptance as valid qualification for being
admitted to Special B.T.C. Courses by the
State."

5. To understand the controversy,
we may first refer to the judgment in the
case of Upendra Rai Vs. State of U.P. &
Others, reported in (2000) 2 UPLBEC
1340 (decided on February 18, 2000). In
that case, the appellant before the
Division Bench had obtained a Diploma
in Education from Zila Shiksha and
Prashikshan Sansthan (DIET), Jabalpur an
956 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
institution
recognized
under
the
provisions of the National Council for
Teacher Education Act, 1993 (hereinafter
refereed to as the Act, 1993). The circular
and advertisement insofar as it had the
effect of excluding the candidates having
teacher qualification obtained from an
Institution
recognized
under
the
provisions
of
the
Act,
1993
was
challenged on the ground that it being
void in view of Article 254 of the
Constitution. The appellant was equipped
with the requisite qualification for being
considered for appointment as Assistant
Teacher in Junior Basic School. The
learned Division Bench held that the
classification between the candidates,
who had passed requisite teacher training
course from a recognized institution of
Gorakhpur and those who have passed
such course from a recognized institution
outside
Gorakhpur
is
arbitrary
and
violative of Article 14 of the Constitution
of India. The Government by a Circular
had decided to fill up the post of Assistant
Teacher in Junior Basic School only from
such candidates, who have, according to
the provisions of the U.P. Basic Education
(Teachers) Service Rules, 1981, obtained
BTC, Hindustani Teachers Certificate,
Junior Teachers Certificate and Teacher
Certificates from institutions run by the
Government
of
Uttar
Pradesh
and
equivalent to BTC course and other
training courses and degrees/diplomas.
Insofar the advertisement was concerned,
it had been envisaged that only those
candidates could apply for appointment to
the Institution as per the provisions of the
Act, 1993. The Court held that the
impugned Government Circular and the
advertisement insofar as they excluded
candidates
who
had
obtained
their
teachers education certificate from an
institute recognized by the N.C.T.E. was
void being ultra-vires Article 354 of the
Constitution of India.

6. In Ghanshyam & Others Vs.
State of U.P. & Others (Civil Misc. Writ
Petition
No.27948
of
1999),
an
unreported judgment, the writ petitioners
had prayed for a mandamus directing the
respondents to permit them to join BTC
training course in pursuance of the
advertisement
dated
8.3.1998.
The
advertisement was issued in pursuance of
the Government Order dated 9.1.1998.
The validity of the same had been upheld
in the case of Alok Kumar Pandey Vs.
State of U.P. & Others (C.M.W.P.
No.29107 of 1999-decided on 19.7.1999).
The special training was to be given only
to the teachers who had got their
B.Ed./LT/C.P.Ed./D.P.Ed.
from
the
institutions which are in Uttar Pradesh
and not to those who got such certificates
from outside U.P. Challenge was on the
ground that this is violative of Articles 14
and 21 of the Constitution of India. The
learned Single Judge observed that he
could not accept the contention, as there
was no violation of Articles 14 and 21 of
the Constitution of India. Accordingly, he
dismissed the writ petition with some
directions.

7. The same matter was taken up in
an appeal in the case of Vijay Kumar
Kushwaha (supra). The learned Division
Bench noted, what had been held by the
learned Single Judge and that the
Government Order was not violative of
Articles 14, 16 and 21 of the Constitution
of India and observed that there is no
ground to interfere with the matter, and
dismissed the appeal.

It may be noted that in both the
judgments of the learned Single Judges as
3 All] Jitendra Kumar Soni and others V. State of U.P. and others
957
also the Division Bench, no reasons have
been assigned as to why Articles 14 and
21 of the Constitution of India are not
attracted. This is for the reason, that to be
a ratio decendi. It is required amongst
others that the issue must be answered by
giving reasons.

8. Noticing the difference of
opinion, the matter was referred to the
Larger Bench in the case of Rajeshwar
Singh Vs. State of U.P. & Others (Writ
Petition No.2856 (M/S) of 2004), where
the learned Full Bench noted the
judgment in the cases of Upendra Rai
(supra) and Vijay Kumar Kushwaha
(supra). The learned Bench then noted
that the attention of the Court had been
drawn to the Apex Court judgment in the
case of Basic Education Board, U.P. Vs.
Upendra Rai and others, reported in
(2008) 3 SCC 432, wherein the Supreme
Court set aside the judgment of Upendra
Rai's (supra) passed by this Court and
upheld the finding of the other Division
Bench judgment in the case of Vijay
Kumar Kushwaha (supra).

9. It may be noted that what was
considered and answered by the learned
Division Bench in Kushwaha's case
(supra)
were
the
appointment
of
candidates, who had obtained their
degrees/diplomas/certificates
from
the
Institutions within the State of U.P. to
post in the office of Basic Education
Board. In the case of Basic Education
Board U.P. (supra), the question for
consideration was about the qualification
of the respondents for being appointed as
Assistant Teacher in Junior Basic School
in the State of Uttar Pradesh. The
appointment
is
governed
by
the
provisions of the U.P. Basic Education
(Teachers)
Service
Rules,
1981
(hereinafter referred to as ''the Rules,
1981'). In paragraph 19 of the judgment,
the Supreme Court was pleased to observe
as under:

"19. ......Hence, the qualification for
appointment as teacher in the ordinary
educational institutions like the primary
school, cannot be prescribed under the
NCTE
Act,
and
the
essential
qualifications are prescribed by the local
Acts and Rules in each State. In U.P. the
essential qualification for appointment as
a primary school teacher in a Junior Basic
School is prescribed by Rule 8 of the U.P.
Basic
Education
(Teachers)
Service
Rules, 1981, which have been framed
under the U.P. Basic Education Act, 1972.
A person who does not have the
qualification mentioned in Rule 8 of the
aforesaid
Rules
cannot
validly
be
appointed as an Assistant Master or
Assistant Mistress in a Junior Basic
School."

10. Attention of the Court is then
invited to the judgment of the Supreme
Court in Irrigineni Venkata Krishna &
Others Vs. Government of Andhra
Pradesh & Anr., reported in 2009 STPL
(Web) 174 SC. The Supreme Court noted
that a Division Bench of this Court in
Basic Education Board, U.P. (supra) had
taken a view that the regulations framed
under the Act, 1993 do not bind the State
Government in the matter of fixation of
qualifications for teachers in formal
schools. The learned Bench found that it
would be in the fitness of things, if the
appeals are being heard by a three-Judges'
Bench for authoritative pronouncement on
the following questions of law:-

1.Whether NCTE Act only deals
with the teachers' training institutes and
958 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the power conferred upon the National
Council for Teachers' Education under
section 12 (d) of that Act in laying down
guidelines
in
respect
of
minimum
qualifications for a person to be employed
as a teacher is confined to such institutes
i.e., teachers' training institutes?

2. If answer to the aforesaid question
is in negative, whether the Regulations
framed in exercise of the powers under
Section 32 (2) (d) (i) read with Section 12
(d) of NCTE Act by the National Council
for Teacher Education laying down
qualifications for employment of teachers
in primary schools is binding on the state
government and in view thereof, the state
government is denuded of its authority to
enact qualification for appointment as
teachers in primary schools?

11. Before proceeding to answer the
issues, we may note that regulations have
been framed under the National Council
for Teachers Education Act, 1993, which
are known as ''The National Council for
Teacher Education (Recognition Norms
and
Procedure)
Regulations,
2009'
(hereinafter
referred
to
as
''the
Regulations, 2009'). Regulation 8 of
Regulations, 2009 deals with conditions
for grant of recognition and Regulation 9
thereof, deals with the Norms and
Standards for various teachers education
courses, as specified in Appendixes 1 to
13. Insofar as Appendix-I is concerned, to
which we are concerned, Regulation 3 (3)
reads as under:-

"3.
Intake,
Eligibility
and
Admission Procedure

...

(3)
Admission
Procedure,--
Admission shall be made on merit on the
basis of marks obtained in the qualifying
examination and/or in the entrance
examination or any other selection
process as per the policy of the State
Government/UT Administration."

12. It would, thus, be clear that one
of the criterion for grant of recognition to
an Institution for imparting education, is
that admission must be based on merit,
which could either be on the basis of
marks
obtained
in
the
qualifying
examination and/or in the entrance
examination or any other selection
process as per the policy of the State
Government/UT Administration. The only
criteria, therefore, for an Institution to be
given recognition by the NCTE under the
Regulations, is that the admission can
only be on merit. Any other condition
imposed, which deports from the criteria
of merit for admission to a teachers
training course would be illegal. A
condition to restrict applicants, who may
be more meritorious than the students
passing out from another institution
recognized by the N.C.T.E. in the State of
U.P., would be clearly illegal.

13. The Supreme Court in Rajesh
Kumar Gupta and others Vs. State of
U.P. & Others, reported in (2005) 5 SCC
172, was concerned with the Special BTC
Course-2001. There were several issues.
The present issue was not one of them.
One of the issues for consideration was as
to whether the selection of candidates for
Special B.T.C. training is contrary to the
provisions of the U.P. Basic Education
Act, 1972 and the U.P. Basic Education
Teachers Service Rules, 1981. This was
further in the context of the National
Council for Teacher Education Act, 1993.
We may gainfully refer to the following
3 All] Jitendra Kumar Soni and others V. State of U.P. and others
959
paragraph of the said judgment. Paragraph
20 thereof is as under:-

"20. The U.P. Basic Education
(Teachers) Service Rules, 1981 provide
under Rule 5 for direct recruitment to the
posts of Assistant Masters and Assistant
Mistress to junior basic schools. The
Rules
prescribe
the
qualifications
requisite
for
such
posts.
Academic
qualification required is a bachelor's
degree from a university established by
law in India or a degree recognized by the
Government
together
with
"training
qualification" consisting of a Basic
Teacher's Certificate, Hindustani teacher's
certificate, junior teacher's certificate,
certificate of teaching of any other
training
course
recognized
by
the
Government as equivalent thereto. In the
face of these Rules, and particularly
keeping in view the provisions of the
National Council for Teacher Education
Act, 1993, no fault can be found with the
impugned judgment of the High Court
that the Special BTC training course
formulated by the State Government was
contrary
to
the
provisions
of
the
impugned Act and the Rules and the 1993
Central Act."

Thus, it would be clear that the
Supreme Court in the case of U.P. Basic
Education Act, 1972 and the National
Council for Teacher Education Act, 1993
has held that no B.T.C. Course could be
treated as recognized, if it was not
recognized by the N.C.T.E.

14. The scope of the 1993 Act has
been considered in various judgments. We
may refer to the judgment in State of
Maharashtra Vs. Sant Dnyaneshwar
Shikshan Shastra Mahavidyalaya and
others, reported in (2006) 9 SCC 1 and to
the following paragraphs:-

"24. Whereas Article 248 provides
for residuary power of legislation, Article
254
covers
cases
of
inconsistency
between laws made by Parliament and by
legislatures of the States.

25. Schedule VII to the Constitution
comprises of three Lists: (i) Union List,
(ii) State List and (iii) Concurrent List.
While exclusive power to enact laws lies
with Parliament under List I, the power to
enact laws under List II is with the State
Legislatures. In respect of subjects falling
under List III, it is open to Parliament as
well as the State Legislatures to enact
laws subject to the provisions of Article
254.

45. We may, however, state that
NCTE and contesting respondents are
right in relying upon a decision of this
Court in Adhiyaman [(1995) 4 SCC 104]
referred to earlier. In Adhiyaman this
Court was called upon to consider the
constitutional validity of some of the
provisions of the Tamil Nadu Private
Colleges (Regulation) Act, 1976 and the
Rules made thereunder as also the Madras
University Act, 1923 and the Rules made
thereunder. It was contended that certain
provisions
of
the
State
Act
were
inconsistent with the provisions of the
Central Act (All India Council for
Technical Education Act, 1987) and
hence were inoperative. This Court
upheld the contention of the petitioners
and ruled that the State Legislature could
not enforce an Act if it is inconsistent
with the Central Act and to the extent of
such inconsistency, the Central Act would
operate and the State Acts would be
inoperative."
960 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

62. From the above decisions, in our
judgment, the law appears to be very well
settled. So far as coordination and
determination of standards in institutions
for higher education or research, scientific
and technical institutions are concerned,
the subject is exclusively covered by
Entry 66 of List I of Schedule VII to the
Constitution and the State has no power to
encroach upon the legislative power of
Parliament. It is only when the subject is
covered by Entry 25 of List III of
Schedule VII to the Constitution that there
is a concurrent power of Parliament as
well as the State Legislatures and
appropriate Act can be made by the State
Legislature subject to limitations and
restrictions under the Constitution.

63. In the instant case, admittedly,
Parliament has enacted the 1993 Act,
which is in force. The preamble of the Act
provides for establishment of National
Council for Teacher Education (NCTE)
with a view to achieving planned and
coordinated development of the teachereducation system throughout the country,
the regulation and proper maintenance of
norms and standards in the teachereducation
system
and
for
mattes
connected therewith. With a view to
achieving
that
object,
the
National
Council for Teacher Education has been
established at four places by the Central
Government. It is thus clear that the field
is fully and completely occupied by an Act
of Parliament and covered by Entry 66 of
List I of Schedule VII. It is, therefore, not
open to the State Legislature to encroach
upon the said field. Parliament alone
could have exercised the power by
making
appropriate
law.
In
the
circumstances, it is not open to the State
Government to refuse permission relying
on
a
State
Act
or
on
"policy
consideration".

64. Even otherwise, in our opinion,
the High Court was fully justified in
negativing the argument of the State
Government that permission could be
refused by the State Government on
"policy
consideration".
As
already
observed earlier, policy consideration was
negatived by this Court in Thirumuruga
Kirupananda Trust [(1996) 3 SCC 15] as
also in Jaya Gokul Educational Trust
[(2000) 5 SCC 231]."

From these paragraphs, it would be
clear that once Parliament has made a law
covering the field, it is not open to the
State to make any law or have any policy
insofar as admission to an institution
established for Teachers Training. In fact,
as the record shows, the Government
itself
had
moved
NCTE
to
grant
permission for Special B.T.C. Courses,
which NCTE has granted. The provisions
of the Act, Rules and Regulations,
therefore, will apply for admission to a
B.T.C. Courses and any other law or
policy to the contrary would be violative
or
ultra-vires
Article
254
of
the
Constitution of India.

15. The recruitment of teacher in
Basic Schools is governed by the
provisions of the Rules of 1981. Rule 5
(a) (ii) of the Rules, 1981 provides for
recruitment of Assistant Teacher in Junior
Basic School. The essential qualifications
of candidates for appointment to a post
referred to in clause (a) (ii) of rule 5 of
Rules, 1981 is, a Bachelor's Degree from
a University established by law in India or
a Degree recognized by the Government
as equivalent thereto together with the
training qualification consisting of a Basic
3 All] Jitendra Kumar Soni and others V. State of U.P. and others
961
Teacher's
Certificate,
Vishisht
Basic
Teacher's Certificate (B.T.C.), Hindustani
Teacher's Certificate, Junior Teacher's
Certificate, Certificate of Teaching or any
other Training Course recognized by the
Government as equivalent thereto.

16. We are here concerned with the
Vishisht Basic Teacher's Certificate. For
appointment to a post as set out in rule 5,
the essential academic qualifications are
in terms of rule 8 of Rules, 1981. This
requires passing of a course as set out
therein.

17. The real question for our
consideration, before we answer the three
questions, is as to whether it is possible to
make a distinction between the prescribed
educational qualifications for the posts as
set out in rule 5 and the criteria for
admission to BTC Courses approved by
the NCTE to correctly understand the
issue.

18. One of the grounds raised by the
writ petitioners in the writ petitions is that
the candidates, who had passed B.Ed.
examination from the institution outside
the State of Uttar Pradesh, are eligible for
admission to the Special B.T.C. Courses,
but
insofar
as
the
LT/B.P.Ed./D.P.Ed./C.P.Ed.
are
concerned, the State Government has
restricted it to the candidates, who have
passed from Institutions located in the
State of Uttar Pradesh.

In answer to that, the State has filed
its counter affidavit through Sri Vinay
Kumar
Pandey,
Principal,
District
Institute of Education and Training,
Mahoba. It is stated in the counter
affidavit that proposal was sent by the
State Government to the NCTE, New
Delhi
on
22.6.2006
for
obtaining
permission to conduct the Special B.T.C.
Course-2006 from the candidates having
B.Ed./LT/B.P.Ed./C.P.Ed./D.P.Ed.
from
an institution situated within the territory
of State and recognized by the NCTE for
filing up of 50,000 vacancies of Assistant
Teachers in Primary Schools controlled
and managed by the Basic Shiksha
Parishad. It was mentioned that similar
proposal was made earlier and the NCTE
had accorded permission for conducting
the training for the year 2004, as Special
B.T.C. Course, 2004. Under the proposal
dated 22.6.2006, it was set out that the
Special B.T.C. Course was only for the
candidates
having
B.Ed./LT/B.P.Ed./
C.P.Ed./D.P.Ed.
from
an
institution
situated within the territory of State and
recognized by the NCTE. The NCTE
accepted the proposal only for B.Ed.
certificate holders, vide order dated
27.6.2006
and
LT/B.P.Ed./D.P.Ed./
C.P.Ed. certificate holders were not
permitted
and
consequently,
a
Government Order was issued to that
effect followed by an advertisement from
eligible candidates, who had B.Ed.
N.C.T.E. did not impose any condition
that such candidates must have passed out
from an Institution situate within the State
of Uttar Pradesh, nor did the State
Government insist on such requirement.
As
the
candidates
having
degree/diploma/certificate
of
LT/B.P.Ed./D.P.Ed./C.P.Ed.
were
excluded, they had preferred writ petitions
before this Court. This Court, vide order
dated
31.7.2007
permitted
LT/B.P.Ed./D.P.Ed./C.P.Ed.
certificates
holders to also apply apart from the
holders of B.Ed. degree. After various
requests made, the NCTE, vide order
dated 20.09.2007 granted permission to
include
LT/B.P.Ed./D.P.Ed./C.P.Ed.
962 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
certificates holders also in continuation to
previous permission of 27.06.2007. The
only reason given by the State for
imposing this condition, is that, since
there was a proposal made by the State
Government to NCTE and NCTE has
accepted the said proposal, that condition
was imposed.

19. An ancillary objection was
raised based on Article 14 of the
Constitution of India. The objection was
that insofar as the candidates, who
possess B.Ed. Degree from an Institution
situate outside the State of Uttar Pradesh,
they are eligible to apply for Special
B.T.C. Course, but not the candidates,
who possess LT/B.P.Ed./D.P.Ed./C.P.Ed.
from an Institution situate outside the
State of Uttar Pradesh. It is submitted that
this is arbitrary as the exclusion is
unreasonable. There is no answer by the
State to this contention except to contend
that they had sought approval from the
N.C.T.E. for that purpose. Factually,
N.C.T.E., whilst granting permission
initially granted it only to applicants who
had B.Ed. qualifications. There was no
stipulation that they had to pass B.Ed.
from institutions in U.P. Thereafter at the
State
further
request,
LT/B.P.Ed./D.P.Ed./C.P.Ed.
were
also
included. Again there was no stipulation
that they must possess the qualifications
from institutions in State of U.P.

In our opinion, all institutions
imparting training course for teachers
approved by the N.C.T.E. are a class by
themselves and there can be no distinction
as to whether they pass their B.Ed. from
an institution in the State of U.P. or other
States of India, as long as the institutions
are recognized by the N.C.T.E. and also
have recognition of any other body in the
State, if required. The State has also not
provided for any reservation based on the
State's interest. In our opinion, therefore,
the
notification
excluding
such
degree/diploma/certificate holders as well
as the advertisement would be clearly
arbitrary and unreasonable.

Once
the
teachers
training
institutions
constitute
a
class
by
themselves, the further classification
could only be based on the grounds,
which have a nexus with the object, which
is
imparting
quality
education
by
conferring
degrees/diplomas/certificates
through
institutions
recognized
by
N.C.T.E. As all institutions, which impart
a course in teachers training must have
the same standard, then mini classification
is unreasonable. It was not open to the
State Government to treat only a class of
applicants,
who
possess
B.Ed.
for
admission to the Special B.T.C. Course
and exclude those candidates having
degree/diploma/certificate
in
LT/B.P.Ed./D.P.Ed./C.P.Ed.

20. Considering the requirement of
sub-clause (3) of Clause-3 of Appendix-I
of the Regulations, 2009, one of the
conditions for grant of recognition is that
''the admission shall be based on merit'.
Therefore, it would not be open either to
the Institution or to the Government to
impose any condition contrary to the
aforesaid Regulations. On this count
itself, the condition imposed that only
those candidates, who have passed the
afore-mentioned
courses
from
the
Institutions situate within the territory of
the State of Uttar Pradesh, will be entitled
to apply for Special B.T.C. Courses, is
liable to be set aside, as it keeps out other
meritorious candidates who have passed
out from a teaching institution recognized
3 All] Jitendra Kumar Soni and others V. State of U.P. and others
963
by NCTE, may be from out side the State.
That
a
candidate
who
successfully
pursues the B.T.C. Course, considering
the present number of vacancies and
would be fulfilling one of the eligibility
conditions is irrelevant for admission to
the B.T.C. Course.

21.