# Kamal Kishore Pal v. State of U.P.and others

- **Citation:** (2011) 3 ILRA 1483
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-22
- **Case number:** Civil Misc. Writ Petition No. 58884 of 2011
- **Bench:** Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamal-kishore-pal-v-state-of-u-p-and-others-42087
- **Pages:** 6

## Headnote

Sri Bhola Nath Yadav
Sri Rama Nand Yadav

Counsel for the Respondents
Sri R.A. Akhtar
C.S.C.

Constitution
of
India,
Article
226Diploma in L.T. Grade-seeking direction
regarding eligibility to participate in
T.E.T. Examination-treating equivalent to
B.Ed.-held in view of Section 23 (1) of
Right of children to free and compulsory
Education
Act,
2009-not
eligible
to
appear U.P.T.E.T.-petition dismissed.
1484 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

## Text

3 All] Kamal Kishore Pal V. State of U.P.and others
1483
was allowed to deposit 1/4th of the bid
amount and he immediately thereafter
deposited Rs. 25,000/-. The amount was
accepted immediately thereafter issuing
receipts by the auctioning authority on
19.7.2010. Even thereafter, if the fact
regarding inadequacy of the price or
material irregularity or fraud was within
the knowledge of the auctioning authority,
the petitioner was allowed to deposit 3/4th
of the balance amount of bid i.e. Rs.
60,000/- on 21.7.2010 and the petitioner
was issued a receipt of the deposit of
3/4th balance amount of the bid by the
auctioning authority on the same day.

31. Thus, after getting the whole
amount of the bid received by the
auctioning authority till 21.7.2010, the
auctioning authority in a shocking and
surprising way recommended to the
S.D.M./respondent no. 2 for re-auction of
the vehicle in question with some ulterior
motive just on the ground of inadequacy
of the price. If any inadequacy of price
had been within the knowledge of the
auctioning authority at the time of
completion of the auction, there would
not have been any reason for him to
submit a report recommending for reauction subsequently with delay. On the
basis of the said report of the auctioning
authority
dated
22.7.2010,
the
S.D.M./respondent no. 2 passed the
impugned order in one sentence to the
effect that "agreed, the auction cancelled,
the re-auction be made as per the rules."
This by can no stretch of imagination be
called a speaking or legal order which
was passed behind the back of the
petitioner. If for a moment the point of
some commotion during the progress of
auction was there, the same did not find
place in the relevant report dated
22.7.2010 submitted to the S.D.M. by
which he recommended for re-auction.
The impugned order passed by the
respondents
appears
to
be
illegal,
perverse, unjust, arbitrary and malafide.

32. The impugned order dated
22.7.2010 passed by the respondent no.2/
Sub Divisional Magistrate, Nizamabad,
Azamgarh, (Annexure No.1), is set aside.
The respondent nos. 2 and 3 are directed
to release the auctioned Bolero Jeep 2003
Model (Chassis No.MA-1XA2 ACB) in
favour of the petitioner from Police
Station Gambhirpur, Azamgarh.

33.

With
the
aforesaid
observations/directions, the writ petition
stands allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2011

BEFORE
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 58884 of 2011

Kamal Kishore Pal

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

Counsel for the Petitioner:
Sri Bhola Nath Yadav
Sri Rama Nand Yadav

Counsel for the Respondents
Sri R.A. Akhtar
C.S.C.

Constitution
of
India,
Article
226Diploma in L.T. Grade-seeking direction
regarding eligibility to participate in
T.E.T. Examination-treating equivalent to
B.Ed.-held in view of Section 23 (1) of
Right of children to free and compulsory
Education
Act,
2009-not
eligible
to
appear U.P.T.E.T.-petition dismissed.
1484 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
(Delivered by Hon'ble Dilip Gupta, J. )

1. The petitioner, who has obtained
the
Diploma
in
L.T.
from
the
Departmental Examination U.P. in the
year 1996, has filed this petition for a
direction upon the respondents to
consider it as a valid qualification for
appearing
at
the
U.P.
Teachers
Eligibility Test (hereinafter referred to
as
the
'U.P.-TET')
scheduled
to
commence from 13th November, 2011.

2. It is stated that in exercise of the
powers conferred by Section 23(1) of
the Right of Children to Free and
Compulsory
Education
Act,
2009
(hereinafter referred to as the 'Act') and
in pursuance of the notification dated
31st
March,
2010 issued
by
the
Government of India, the National
Council
for
Teachers
Education
(hereinafter referred to as the 'NCTE')
issued the notification dated 23rd
August, 2010 laying down the minimum
qualifications for a person to be eligible
for appointment as a teacher in Classes I
to VIII in a School referred to in Section
2(n) of the Act, which amongst others,
provides that the person should pass the
TET to be conducted by the appropriate
Government in accordance with the
Guidelines framed by the NCTE for the
purpose. The Board of High School and
Intermediate
Education
(hereinafter
referred
to
as
the
'Intermediate
Education Board'), which has been
authorised by the State Government to
hold
such
a
test,
issued
the
advertisement dated 22nd September,
2011 inviting applications from the
eligible candidates for appearing in the
UP-TET but persons who have obtained
Diploma
in
L.T.
have
not
been
permitted to appear in the test. It is,
therefore, asserted that the petitioner,
who has obtained Diploma in L.T.
stands excluded from appointment as a
teacher in Classes I to VIII since a
person who has cleared the TET is only
considered eligible for appointment.

3. It is contended by learned
counsel
for
the
petitioner
that
notification dated 23rd August, 2010
issued by the NCTE under Section 23(1)
of
the
Act
regarding
minimum
qualification for a person to be eligible
for appointment as a teacher in Classes I
to VIII so far as it restricts candidates
obtaining B.Ed. Degree in one year/Two
years
Diploma
in
Elementary
Education/Diploma
in
Education
(Special
Education)/Four
Years
Bachelor of Elementary Education,
should
be
modified
to
include
candidates who have obtained Diploma
in L.T. as such candidates are at parity
with the candidates obtaining B.Ed.
Degree in one year. He, therefore,
submits that the petitioner, who has
obtained the Diploma in L.T. should
also be considered eligible under the
advertisement dated 22nd September,
2011
issued
by
the
Intermediate
Education Board.

4. Sri K.S. Kushwaha, learned
Standing Counsel and Sri R.A. Akhtar,
learned counsel appearing for the NCTE
have pointed out that Diploma in L.T. Is
not the qualification prescribed under
the notification dated 23rd August, 2010
for appointment as a teacher in the
School and, therefore, the petitioner
cannot be permitted to appear at the
U.P-TET.
3 All] Kamal Kishore Pal V. State of U.P.and others
1485

5.

I
have
considered
the
submissions advanced by the learned
counsel for the parties.

6. The petitioner, who claims to be
possessing Diploma in L.T. Is desirous
of appearing at the UP-TET conducted
by the Intermediate Education Board so
that he can possess the minimum
qualification
for
a
person
to
be
considered eligible for appointment as a
teacher in Classes I to VIII in a school
referred to in Section 2(n) of the Act.

7. In order to appreciate the
controversy involved in this petition, it
will be necessary to refer to various
provisions of the Act and the relevant
Regulations and Notifications.

8. Section 23(1) of the Act deals
with the qualification for appointment
and terms and conditions of service of
teachers and is as follows:-

"23.
Qualification
for
appointment
and
terms
and
conditions of service of teachers.--(1)
Any person possessing such minimum
qualifications, as laid down by an
academic authority, authorised by the
Central Government, by notification,
shall be eligible for appointment as a
teacher."

9. Elementary Education has been
defined under Section 2(f) of the Act
while a School has been defined under
Section 2(n) of the Act and the
definitions are as follows:-

"2(f).
"elementary
education"
means the education from first class to
eight class;"
................

(n) "school" means any recognised
school imparting elementary education
and includes--

(i) a school established owned or
controlled
by
the
appropriate
Government or a local authority;

(ii) an aided school receiving aid or
grants to meet whole or part of its
expenses
from
the
appropriate
Government or the local authority;

(iii) a school belonging to specified
category; and

(iv)
an
unaided
school
not
receiving any kind of aid or grants to
meet its expenses from the appropriate
Government or the local authority;"

10. The Central Government, by
means of the notification dated 31st
March, 2010 published in the Official
Gazette dated 5th April, 2010, has
authorised the NCTE as the ''academic
authority' to prescribe the minimum
qualifications which notification is as
follows:-

"NOTIFICATION
New Delhi, the 31st March, 2010

S.O. 750(E).--In exercise of the
powers conferred by sub-section (1) of
Section 23 of the Right of Children to
Free and Compulsory Education Act,
2009, the Central Government hereby
authorises the National Council for
Teacher Education as the academic
authority to lay down the minimum
qualifications for a person to be eligible
for appointment as a teacher."
1486 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

11. The NCTE, accordingly, issued
the notification dated 23rd August, 2010
which was published in the Gazette of
India dated 25th August, 2010. The said
notification lays down the minimum
qualification for a person to be eligible
for appointment as a teacher in Classes I
to VIII in a school referred to in Section
2(n) of the Act with effect from the date
of the notification. However, another
notification dated 29th July, 2011 was
published in the Gazette of India dated
2nd August, 2011. This notification
made
certain
amendments
to
the
notification dated 23rd August, 2010
published in the Gazette of India dated
25th August, 2010. The minimum
qualifications
prescribed
in
the
notification after the amendment for a
person to be eligible for appointment of
a teacher are as follows:-

1. Minimum Qualifications.-

(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.).
OR
Senior Secondary (or its equivalent)
with at least 50% marks and 2-year
Diploma
in
Education
(Special
Education).
OR
Graduation 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.

(ii) Classes VI-VIII

(a) Graduation and 2-year Diploma
in Elementary Education (by whatever
name known)
OR
Graduation with at least 50% marks and
1-year Bachelor in Education (B.Ed.)
OR
Graduation with at least 45% marks and
1-year Bachelor in Education (B.Ed.), in
accordance with the NCTE (Recognition
Norms
and
Procedure)
Regulations
issued from time to time in this regard.
OR
Senior Secondary (or its equivalent)
with at least 50% marks and 4-year
Bachelor
in
Elementary
Education
(B.EI.Ed)
OR
Senior Secondary (or its equivalent)
with at least 50% marks and 4-year
BA/B.Sc. Ed. or B.A. Ed./B.Sc. Ed.
OR
Graduation with at least 50% marks and
1-year B.Ed. (Special Education)
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.
3 All] Kamal Kishore Pal V. State of U.P.and others
1487

2.
Diploma/Degree
Course
in
Teacher Education.- For the purprose of
this Notification, a diploma/degree course
in teacher education recognised by the
National Council for Teacher Education
(NCTE)
only
shall
be
considered.
However, in case of Diploma in Education
(Special Education) and B.Ed. (Special
Education), a course recognised by the
Rehabilitation Council of India (RCI) only
shall be considered.

3. Training to be undergone.- A
person -

(a) with Graduation with at least 50%
marks and B.Ed. qualification or with at
least 45% marks and 1-year Bachelor in
Education (B.Ed.), in accordance with the
NCTE
(Recognition
Norms
and
Procedure) Regulations issued from time
to time in this regard shall also be eligible
for appointment for Class I to V upto 1st
January, 2012, provided he/she undergoes,
after appointment, an NCTE recognised 6month Special Programme in Elementary
Education.

(b) with D.Ed. (Special Education) or
B.Ed. (Special Education) qualification
shall undergo, after appointment, an NCTE
recognised 6-month Special Programme in
Elementary Education.

4. Teacher appointed before the
date of this Notification.- The following
categories of teachers appointed for classes
I to VIII prior to date of this Notification
need
not
acquire
the
minimum
qualifications specified in Para (1) above,

(a) A teacher appointed on or after the
3rd September, 2001, i.e. the date on
which the NCTE (Determination of
Minimum Qualifications for Recruitment
of Teachers in School) Regulation, 2001
(as amended from time to time) came into
force, in accordance with that Regulation.

Provided that a teacher of class I to V
possessing B.Ed. qualification, or a teacher
possessing B.Ed. (Special Education) or
D.Ed. (Special Education) qualification
shall undergo an NCTE recognised 6month special programme on elementary
education.

(b) A teacher of class I to V with
B.Ed. qualification who has completed a 6month Special Basic Teacher Course
(Special BTC) approved by the NCTE;

(c) A teacher appointed before the 3rd
September, 2001, in accordance with the
prevalent Recruitment Rules.

5.(a) Teacher appointed after the
date of this notification in certain cases:
Where an appropriate Government or local
authority or a school has issued an
advertisement to initiate the process of
appointment of teachers prior to the date of
this Notification such appointments may
be made in accordance with the NCTE
(Determination of Minimum Qualifications
for Recruitment of Teachers in Schools)
Regulations, 2001 (as amended from time
to time).

(b)
The
minimum
qualification
norms referred to in this notification apply
to teachers of Languages, Social Studies,
Mathematics, Science, etc. In respect of
teachers for Physical Education, the
minimum qualification norms for Physical
Education teachers referred to in NCTE
Regulation dated 3rd November, 2001 (as
amended from time to time) shall be
applicable. For teachers of Art Education,
Craft Education, Home Science, Work
1488 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Education, etc. the existing eligibility
norms
prescribed
by
the
State
Governments
and
other
school
managements shall be applicable till such
time the NCTE lays down the minimum
qualifications in respect of such teachers.

12. It is stated by learned counsel for
the NCTE that 3rd November, 2001 in
paragraph 5(b) of the said notification had
been wrongly mentioned and the date
should be 3rd September, 2001.

13. It is, therefore, clear that it is
only those candidates who have obtained
the B.Ed. Degree in one year/Two years
Diploma
in
Elementary
Education/Diploma in Education (Special
Education)/Four
Years
Bachelor
of
Elementary Education, who can be
considered eligible under the notification
and, therefore, can appear at the U.P.-
TET.

14. It is pointed out by learned
counsel for the respondents that persons
who obtain the Diploma in L.T. are not
eligible for appointment as Assistant
Teacher in the School and, therefore, it is
not necessary for them to appear at the
U.P.-TET.
The
contention
of
the
petitioner that Diploma in L.T. should be
treated at par with the B.Ed. Degree of
one year cannot be accepted.

15. Such being the position, the
petitioner is not eligible to appear at the
U.P.-TET
examination
scheduled
to
commence from 13th November, 2011.

16. The petition is, accordingly,
dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.12.2011

BEFORE
THE HON'BLE SYED RAFAT ALAM, C. J.
THE HON'BLE RAN VIJAI SINGH, J.

Civil misc. Writ Petition No. 70199 of 2011

Rama Shankar

 ...Petitioner
Versus
State Of U.P. Through its Secretary &
others

 ...Respondents

Counsel for the Petitioner:
Sri R.K. Ojha
Sri Bijendra Kumar Mishra

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 226-Public
Interest
Litigation-removal
of
encroachment upon Gaon Sabha landcomplete
machinery
provided
in
statutory Act itself-under section 122-B
L.M.C. Responsible to take appropriate
action-and the Lekhpal of concern village
under Rule 115-Responsible to report
after Rabi and Kharif crops of every yearapart
from
that
word
"otherwise"
indicate any complaint by any person
received by S.D.O. Is duty bound to hold
enquiry-petitioner
to
make
comprehensive Representation to Asst.
Collector for taking appropriate actionpetition disposed of.

Held: Para 14

In view of above legal position, we are of the
view that the appropriate remedy for the
petitioner herein is to file a comprehensive
application/representation giving all details
before the Assistant Collector concerned
with regard to such encroachment as alleged
herein and on receipt of such complaint, the