# Kuldeep Kumar Saxena & Ors v. U.O.I. & Ors

- **Citation:** (2022) 3 ILRA 577
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-21
- **Case number:** Writ A No. 9673 of 2021
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kuldeep-kumar-saxena-ors-v-u-o-i-ors-47593
- **Pages:** 19

## Headnote

A. Constitution of India - Article 21-A -
Right
of
Education
-
Scope
-
Establishment of Kasturba Gandhi Balika
Vidyalaya - Object - Education for a
vulnerable class of marginalized children -
Held, right to education means right to
quality education and it can be provided
by qualified teachers only - Establishment
of KGBV is thus a forward step taken by
the State to secure the high objective of
578 INDIAN LAW REPORTS ALLAHABAD SERIES
Article 21A and addresses the cause of
education
for
a
vulnerable
class
of
marginalized children. (Para 32)
B. Service Law - NCTE Regulation -
Qualification for upper primary teachers -
Requirement of special knowledge in
particular subject - Validity challenged -
Regulations do not require any specific
knowledge in a particular stream at the
graduation or intermediate level. Anyone
who
possesses
the
qualification
prescribed for appointment as a teacher in
Classes VI to VIII is assumed in law to be
competent to teach the subject assigned
to him/her
- Held, qualification for
appointment of teacher in an upper
primary school is not with reference to
any subject. (Para 42 and 44)
C. Service Law - Right of Children to Free
and Compulsory Education Act, 2009 -
Sections 19 & 25 - NCTE Regulation -
Engagement of teacher on contractual
basis - Renewal denied - Categorization
of contractual appointed teachers into
Sangat and Asangat teachers and denial to
renew the Asangat (inconsistent) teacher
- Segregation of teachers based on
subjects taught by them as full time
teacher or part time teacher - Validity of
classification challenged - Held, NCTE
regulations do not prescribe/specify as to
what exactly is meant by a full time
teacher or a part time teacher. Even the
RTE Act of 2009 is silent about the
distinctions
between
the
two.
The
respondents apparently have engaged
teachers as per the curriculum of Basic
Shiksha Parishad, wherein there is no
distinction between full time teacher and
part time teacher. As such aforesaid
distinction drawn by respondents is totally
alien. (Para 61)
D. Interpretation of statute - Literal rule
of interpretation - Once the law requires a
thing to be done in a particular manner it
has to be done in that manner alone and
not in any other manner. (Para 43)
Writ petition allowed. (E-1)

## Text

_Characters 0–39,998 of 59,227. This is a partial read: ask again with offset=39998 for what follows._

3 All. Kuldeep Kumar Saxena & Ors. Vs. U.O.I. & Ors.
577
whether the rules of natural justice are not
violated. Second, where there is some
evidence which the authority entrusted with
the duty to hold the enquiry has accepted
and which evidence may reasonably
support the conclusion that the delinquent
officer is guilty of the charge, it is not the
function of the High Court to review the
evidence and to arrive at an independent
finding on the evidence. The High Court
may interfere where the departmental
authorities have held the proceedings
against the delinquent in a manner
inconsistent with the rules of natural
justice or in violation of the statutory rules
prescribing the mode of enquiry or where
the authorities have disabled themselves
from reaching a fair decision by some
considerations extraneous to the evidence
and the merits of the case or by allowing
themselves to be influenced by irrelevant
considerations or where the conclusion on
the very face of it is so wholly arbitrary
and capricious that no reasonable person
could
ever
have
arrived
at
that
conclusion............................."
 (emphasis added)

5. Learned Standing Counsel also
could not place any reason for not
accepting the resignation of the petitioner.

6. Therefore, the petitioner in the
given facts and circumstances is treated
arbitrarily
by
the
respondents.
The
respondents were bound to accept the
resignation of petitioner and, there was no
necessity to conduct any inquiry against the
petitioner. Even otherwise the inquiry
conducted without fixing any date, time,
and place and evidence itself is vitiated.

7. In view of the aforesaid, the
termination order dated 06.01.2021 is
quashed. The respondents shall treat the
petitioner as having resigned from her post
w.e.f. 01.05.2018 and shall grant her
benefit which she is entitled to by treating
her to be in service till 01.05.2018. Such an
exercise shall be conducted expeditiously,
say in not more than two months from the
date a copy of this order is placed before
respondent
no.2
Director,
Medical
Education & Training, 6th Floor, Jawahar
Bhawan, Lucknow.

8. With the aforesaid, the writ petition
is allowed.
----------
(2022)03ILR A577
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 9673 of 2021
connected with other cases

Kuldeep Kumar Saxena & Ors.
 ...Petitioners
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Amardeo Singh, Sri Ajay Kumar, Sri
Siddharth Khare, Sri Ashok Khare

Counsel for the Respondents:
A.S.G.I., C.S.C., Sri Durga Singh, Sri Piyush
Mishra, Sri Shashi Nandan

A. Constitution of India - Article 21-A -
Right
of
Education
-
Scope
-
Establishment of Kasturba Gandhi Balika
Vidyalaya - Object - Education for a
vulnerable class of marginalized children -
Held, right to education means right to
quality education and it can be provided
by qualified teachers only - Establishment
of KGBV is thus a forward step taken by
the State to secure the high objective of
578 INDIAN LAW REPORTS ALLAHABAD SERIES
Article 21A and addresses the cause of
education
for
a
vulnerable
class
of
marginalized children. (Para 32)
B. Service Law - NCTE Regulation -
Qualification for upper primary teachers -
Requirement of special knowledge in
particular subject - Validity challenged -
Regulations do not require any specific
knowledge in a particular stream at the
graduation or intermediate level. Anyone
who
possesses
the
qualification
prescribed for appointment as a teacher in
Classes VI to VIII is assumed in law to be
competent to teach the subject assigned
to him/her
- Held, qualification for
appointment of teacher in an upper
primary school is not with reference to
any subject. (Para 42 and 44)
C. Service Law - Right of Children to Free
and Compulsory Education Act, 2009 -
Sections 19 & 25 - NCTE Regulation -
Engagement of teacher on contractual
basis - Renewal denied - Categorization
of contractual appointed teachers into
Sangat and Asangat teachers and denial to
renew the Asangat (inconsistent) teacher
- Segregation of teachers based on
subjects taught by them as full time
teacher or part time teacher - Validity of
classification challenged - Held, NCTE
regulations do not prescribe/specify as to
what exactly is meant by a full time
teacher or a part time teacher. Even the
RTE Act of 2009 is silent about the
distinctions
between
the
two.
The
respondents apparently have engaged
teachers as per the curriculum of Basic
Shiksha Parishad, wherein there is no
distinction between full time teacher and
part time teacher. As such aforesaid
distinction drawn by respondents is totally
alien. (Para 61)
D. Interpretation of statute - Literal rule
of interpretation - Once the law requires a
thing to be done in a particular manner it
has to be done in that manner alone and
not in any other manner. (Para 43)
Writ petition allowed. (E-1)
(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This bunch of writ petitions is by
the teachers engaged on contractual basis in
Kasturba Gandhi Balika Vidyalaya, and
have been continuing as such for the last
more than ten years. They are aggrieved by
a circular dated 14.7.2020, issued by the
State Project Director, U.P. Education for
All
Project
Board,
insofar
as
it
contemplates categorization of existing
contractual
teachers
into
Sangat
(consistent) and Asangat (inconsistent)
categories and consequential direction not
to renew the term of Asangat (inconsistent)
contractual teachers from the academic
session 2020-2021, on the basis of such
categorization. A further prayer has also
been made to command the respondents not
to interfere in the working of petitioners as
warden/whole
time
teachers/part
time
teachers and to ensure payment of monthly
emoluments to them.

2. After the right to education was
recognized as a fundamental right for the
children in the age group of 06 to 14 years,
vide 86th amendment to the Constitution of
India, the Government of India launched a
scheme, known as Kasturba Gandhi Balika
Vidyalaya (hereinafter in short referred to
as the ''KGBV') for establishment of
residential schools at upper primary level
for
girls
belonging
to
socially
and
economically weaker sections and other
minorities for backward areas of the
country with an specific intent to target
drop outs. This scheme later got merged
with Sarva Shiksha Abhiyan, which is a
scheme of State known as ''U.P. Education
for all Project'. The need to establish these
institutions was felt necessary as the rural
female literacy rate was much below the
national average as per the 2001 census.
3 All. Kuldeep Kumar Saxena & Ors. Vs. U.O.I. & Ors.
579

3. The KGBV institutions were
established by State Government with
financial
support
from
the
Central
Government under the Sarva Shiksha
Abhiyan. The ratio of financial contribution
between Central Government and State
Government stood at 65:35. A total number
of 746 KGBVs are stated to have been
established and functional in the State of
U.P., as of now. Guidelines laying down
financial norms for such institutions as also
budgetary allocation for the staff etc. is
provided by the State from time to time.

4. The State Project Director, Sarva
Shiksha Abhiyan, on 15.4.2005 issued a
circular after approval was obtained from
the State Government for establishment of
KGBV. Pursuant to aforesaid circular a
committee at district level was formed in
each district of the State of U.P. to appoint
one warden-cum-teacher with qualification
of ''trained graduate' and was to receive
honorarium of Rs.7,000/- per month,
whereas four posts of full time teachers
were sanctioned drawing honorarium of
Rs.6,000/- per month with trained graduate
qualification in Science, Mathematics,
Biology and other teachers. Post of three
part time teachers was also created in
Hindi, Home Science and Science. The
warden-cum-teacher and full time teachers
were expected to stay in the institution.
Preference was to be given to female
candidates. These appointments were to be
contractual in nature for a period of almost
one year (11 months & 29 days) and could
be extended with the approval of the
district level committee.

5. A subsequent circular issued on
16.5.2006 specified the committee for
appointment of teachers and also the blocks
in which these institutions were to be
established.

6. The State Project Director of U.P.
Education for all under the Sarva Shiksha
Abhiyan issued a circular on 8.1.2011
directing commencement of KGBVs w.e.f.
15.2.2011. A committee consisting of
various officers with District Magistrate as
Chairman, Chief Development Officer as
Vice-Chairman
and
District
Basic
Education Officer as Member Secretary
was constituted in each district for
management and supervision of these
KGBVs. The object for establishing KGBV
institutions were specified as providing
education to female students belonging to
Scheduled Castes/Scheduled Tribes, OBC,
Minority or other female children from
below the poverty line. The norms for
selecting location as also the targeted
admission
figures
were
specified.
Admission of 100 girl students was
contemplated with representation of SC/ST
and minority girls to the extent of 75% and
remaining 25% from below the poverty
line. The targeted students were girls, who
were not a part of any school education
programme. Various camps etc. were
organized
for
motivating
the
family
members to encourage them to sent their
female child to KGBV.

7. The staff sanctioned in the
Government Order dated 8.1.2011 is
specified as under:-

"मॉडल-1 के 100 बाणलकाओुं के
कस्तूरबा गाुंिी बाणलका णवद्यालय में वाडेन-1,
पूिटकाणलक णशक्षक-4, अुंशकाणलक णशक्षक-4,
लेखाकार-1, रसोइया-1, सहायक रसोइया-2,
चौकीदार-1 तथा चपरासी-1 के पदोुं पर चयन
णकया जायेगा।"

The subjects to be taught in
KGBV were also specified in the said
Government Order as under:-
580 INDIAN LAW REPORTS ALLAHABAD SERIES

"बेणसक णशक्षा पररषद द्वारा उच्च
प्राथणमक स्तर पर णनिाटररत पाठ्यक्रम के सभी
णवषय तथा णहन्दी, अुंिेजी, सुंस्कृत/उदूट, गणित
(अुंकगणित,बीजगणित,िाणमती)
सामाणजक
णवषय (इणतहास, भूगोल तथा नागररक शास्त्र)
कला/सुंगीत/वाणिि,
गृहणशल्प,
शारीररक
णशक्षा, खेल तथा योगासन, स्काउणटुंग एण्ड
गाइणडुंग, नैणतक णशक्षा, पयाटवरिीय णशक्षा तथा
कम्प्यूटर णशक्षा आणद के णलए णवषय अध्यापकोुं
का चयन इस प्रकार णकया जायेगा णक सभी
णवषयोुं का अध्यापन गुिवत्तापरक हो तथा पाठ्य
सहगामी णक्रयाओुं का सुंचालन भी प्रभावी ढुंग से
हो।"

The
teachers
were
to
be
appointed after inviting applications and
the merit list was to be drawn in respect of
following posts:-

क्र०सुं०
पद का नाम
पदोुं की सुंख्या
1.
वाडेन
1
2.
फूल टाइम टीचर
4
3.
पाटट टाइम टीचर
4
4.
एकाउटेन्ट
1
5.
रसोइया
1
6.
सहायक रसोइया
2
7.
चौकीदार
1
8.
चपरासी
1

कुल योग
15

The
Government
Order
also
provided for a warden-cum-teacher and the
subject-wise description has been specified
as under:-

"गणित (पी०सी०एम०)

01

णवज्ञान (पी०सी०बी०)

01

सामाणजक णवषय

(भूगोल, इणतहास एुंव नागररक शास्त्र)

 01

णहन्दी, सुंस्कृत

01

अुंिेजी

01

उदूट

01

कम्प्यूटर

 01

स्काउट गाइड एुंव शारीररक णशक्षा

 01

कला, क्राफ्ट एुंव सुंगीत

01"

8. The procedure for appointment has
been specified, as per which advertisements
were to be issued in two State level
newspapers and the manner for selection
was specified for these institutions.

9. A circular then came to be issued
on 12.10.2012 providing for renewal of
contractual teachers engaged in KGBV.
This circular provided that teachers whose
services were not found suitable shall not
be continued in the next session but before
their discontinuance an opportunity would
be given to improve their working or else
they be discontinued by giving a month's
notice. The discontinuance of contractual
engagement could, however, be made only
with the approval of the District Magistrate.

10.

The
Principal
Secretary,
Department of Basic Education, issued yet
another circular on 29.7.2013 in which the
3 All. Kuldeep Kumar Saxena & Ors. Vs. U.O.I. & Ors.
581
district level selection committee was reconstituted and two categories were created
in KGBV, namely Model-1 and Model-2.
Model-1 was to be in respect of institutions
having 100 girls with total staff capacity of
15, whereas Model-2 KGBVs were to have
50 girl students with total staff capacity of
12. A provision was made in this
Government Order for appointment of
Urdu language teacher only in areas where
members of minority community were in
substantial numbers. It also provided that
subjects taught at higher primary level by
the Basic Shiksha Parishad would be taught
in these institutions. Relevant portion of the
Government Order, in that regard, is
reproduced hereinafter:-

"बेणसक णशक्षा पररषद द्वारा उच्च
प्राथणमक स्तर पर णनिाटररत पाठ्यक्रम के सभी
णवषय यथा णहन्दी, अुंिेजी, सुंस्कृत/उदूट, गणित
(अुंकगणित,बीजगणित,िामीणत)
सामाणजक
णवषय (इणतहास, भुगोल तथा नागररक शास्त्र),
कला/सुंगीत/वाणिि, गृहणशल्प, शारीररक णशक्षा,
खेल तथा योगासन, स्काउणटुंग एण्ड गाइणडुंग,
नैणतक णशक्षा, पयाटवरिीय णशक्षा तथा कम्प्यूटर
णशक्षा आणद के णलए णवषयवार णशक्षकोुं का चयन
इस प्रकार णकया जायेगा णक सभी णवषयोुं का
अध्यापन गुिवत्तापरक हो तथा पाठ्य सहगामी
णक्रयाओुं का सुंचालन भी प्रभावी ढुंग से हो।

वाडेन णजस णवषय की होगी उस
णवषय हेतु अलग से णशणक्षका का चयन नहीुं
णकया जायेगा। चयन सणमणत अनुमन्य पदोुं पर
चयन के समय णवषयोुं का ध्यान रखेगी। माडल1 के णवद्यालय में गणित एुंव णवज्ञान हेतु प्रस्ताणवत
02 णशक्षकोुं में से यथा सुंभव 01 पूिटकाणलक
णशक्षक तथा 01 अुंशकाणलक णशक्षक होगा। यणद
मॉडल-11 का णवद्यालय अल्पसुंख्यक बाहल्य
णवकासखण्ड/शहरी क्षेत्र में ज्यस्थत न हो तो
स्काउट-गाइड एुंव शारीररक णशक्षा, कला,
क्राफ्ट एुंव सुंगीत के णलए प्रस्ताणवत 02 णशक्षकोुं
में से यथा सुंभव 01 पूिटकाणलक णशक्षक तथा 01
अुंशकाणलक णशक्षक होगा।"

11. The Government of India,
Ministry of Human Resource Development,
Department of School Education and
Literacy revised the norms of institutions in
Sarva Shiksha Abhiyan on 24.3.2014,
whereby maintenance grant per girl came
to be enhanced from Rs.900/- to Rs.1,500/-
per month. The warden as per the financial
norms were now to receive Rs.25,000/- per
month and the full time teachers as per The
Right of Children to Free and Compulsory
Education Act, 2009 (hereinafter referred
to as the ''RTE Act, 2009') norms were to
receive Rs.20,000/- per month. Urdu
teachers were to receive Rs.12,000/- per
month, whereas part time teachers were to
receive Rs.5,000/- per month. Various
other heads were specified for increased
financial support to the KGBV institutions.

12. The Secretary, Basic Education
Department, thereafter issued a circular on
30.6.2015 modifying the provisions in the
light of circular issued by Government of India
on 24.3.2014. Posts for different subjects were
also sanctioned in the said circular.

13. On 13.3.2019 a circular has been
issued by the State Project Director
regarding renewal of contractual teachers
and the manner of assessment of their
work. The circular also provided as under:-

" .... नवीन चयन में यह अणनवायट
रूप से सुणनणित णकया जाए णक वाडेन एुंव
पूिटकाणलक णशणक्षका का चयन मुख्य णवषयोुं के
णलए यथा गणित, णवज्ञान, सामाणजक णवषय,भाषा
(णहन्दी एुंव सुंस्कृत हेतु 01 णशणक्षका) एुंव अुंिेजी
582 INDIAN LAW REPORTS ALLAHABAD SERIES
हेतु तथा अुंशकाणलक णशक्षक/णशणक्षका का
चयन पाठ्य सहगामी णवषयोुं यथा कम्प्यूटर,
स्काउट गाइड एुंव शारीररक णशक्षा तथा कला
क्राफ्ट एुंव सुंगीत के णलए णकया जाए। ... "

14. On 7.4.2020 a circular was issued
by the State Project Director requiring all
District Basic Education Officers (excluding
Kanpur Nagar and Auraiya) to provide details
of working teachers in the format specified
on the designated website i.e. the name of the
institution, name of the teacher, mobile
number, subject, date of appointment and
training status. Details in respect of teachers
not
appointed
as per
the
curriculum
prescribed by the Basic Shiksha Parishad i.e.
incompatible/inconsistent
teachers
were
required to be separately specified.

15. It is in the light of above circulars
issued from time to time that the State
Project Director has issued a circular on
14.7.2020 in respect of renewal of
contractual appointment of teachers in
KGBV. This circular provides that renewal
of teachers are required to be made as per
the circulars of Central Government dated
29.7.2013 and 24.3.2014 and the provisions
of the RTE Act, 2009, particularly the
Schedule appended to Sections 19 and 25
of the said Act. After referring to the
circular dated 7.4.2020 and the information
collected pursuant to it, it has been
observed that the details furnished by the
KGBV
institutions
show
following
infirmities:-

(i) More than one teacher in a
subject have been engaged in various
KGBV vide Annexure-1.

(ii) Appointments have been
made inconsistent with the curriculum
published by Basic Shiksha Parishad and
details of such teachers are specified in
Schedule-2.

(iii) Contractual appointment of
teachers
found
inconsistent
with
the
provisions of RTE Act, 2009, particularly
Sections 19 and 25 thereof, as also in teeth
of circulars dated 29.7.2013 and 24.3.2014
is contained in Annexure-3.

The circular also contemplates
that a committee be constituted at the
district level in each district with Chief
Development Officer of the subject as its
Chairman to examine the renewal of term
of contractual employees and to ensure that
inconsistent (Asangat) teachers are not
retained in KGBV. Relevant portion of the
circular dated 14.7.2020 is extracted
hereinafter:-

"(i) के०जी०बी०वी० में एक णवषय के
एक से अणिक णशक्षक/णशणक्षका का चयन
/सुंणवदा की गयी है।

वार्डेन/पूर्णकालिक
लिलिका-
कस्तूरबा गाुंिी आवासीय बाणलका णवद्यालय में
वाडेन एुंव पूिट काणलका णशणक्षका का पद
मणहला अभ्यथी हेतु णनयत है। इनकी शैणक्षक
योग्यता प्रणशणक्षत स्नातक थी। उ० प्र० शासन के
पत्राुंक
के०जी०बी०वी०/3-2/1916/2013-14
णदनाुंक 29.07.2013 द्वारा शैणक्षक योग्यता उच्च
प्राथणमक स्तर के टी०ई०टी० एुंव प्रणशणक्षत
स्नातक णनिाटररत की गयी है। कस्तूरबा गाुंिी
आवासीय बाणलक णवद्यालय बेणसक णशक्षा
पररषद द्वारा सुंचाणलत उच्च प्राथणमक णवद्यालयोुं
में णनिाटररत पाठ्यक्रम के समरूप है। अतः
णनःशुल्क और अणनवायट बाल णशक्षा का अणिकार
अणिणनयम, 2009 की िारा 19 एुंव 25 में वणिटत
मान एुंव मानकोुं की अनुसूची के अलोक में
वणिटत णवषयोुं में वाडेनकम णशणक्षका एुंव
3 All. Kuldeep Kumar Saxena & Ors. Vs. U.O.I. & Ors.
583
पूिटकाणलक णशणक्षका की नवीन सुंणवदा की
जाये। यणद णकसी कस्तूरबा गाुंिी अाावासीय
बाणलका णवद्यालय में एक णवषय के एक से
अणिक पूिट काणलक णशणक्षका या वाडेन कायटरत
है तो शासन के पत्र णदनाुंक 29.07.2013 द्वारा
णनिाटररत अहटता िाररत करने वाली णशणक्षकाओुं
की के०जी०बी०वी० में सेवा अवणि/अनुभव के
आिारपर सुंकणलत सूची तैयार की जाये। उक्त
सूची में उच्च अनुभव िाररत करने वाली अभ्यथी
की
सम्बज्यन्धत
के०जी०बी०वी०
में
पदस्थापन/नवीन
सुंणवदा
की
जाय,
यणद
सम्बज्यन्धत णवषय का जनपद में सुंचाणलत अन्य
णकसी के०जी०बी०वी० में पद ररक्त हो तो
अवरोही क्रम में सुंकणलत सूची के अनुसार
सम्बज्यन्धत वाडेन/णशणक्षका को समायोणजत णकया
जाये। उक्त जनपदीय सणमणत के प्रस्ताव के क्रम
में णजलाणिकारी के अनुमोदनोपरान्त नवीन
सुंणवदा/पदस्थापन णकया जायेगा।

अंिकालिक
लिलिक/लिलिका-
कस्तूरबा गाुंिी आवासीय बाणलका णवद्यालय
बेणसक णशक्षा पररषद द्वारा सुंचाणलत उच्च
प्राथणमक णवद्यालयोुं में णनिाटररत पाठ्यक्रम के
समरूप है। अतः णनःशुल्क और अणनवायट बाल
णशक्षा का अणिकार अणिणनयम, 2009 की िारा
19 एुंव 25 में वणिटत मान एुंव मानकोुं की
अनुसूची के आलोक में अुंश काणलक णवषयोुं हेतु
यणद एक णवद्यालय मे एक णवषय के एक से
अणिक अुंश काणलक णशक्षक/णशणक्षका कायटरत
है तो शासन के पत्र णदनाुंक 29.07.2013 द्वारा
णनिाटररत अहटता िाररत करने वाली णशणक्षकाओ
की के०जी०बी०वी० में सेवा अवणि/अनुभव के
आिार पर सुंकणलत सूची तैयार की जाये। उक्त
सूची में उच्च अनुभव िाररत करने वाली अभ्यथी
की सम्बज्यन्धत के०जी०बी०वी० में पदस्थापन
/नवीन सुंणवदा की जाय। यणद सम्बज्यन्धत णवषय
का
जनपद
में
सुंचाणलत
अन्य
णकसी
के०जी०बी०वी० में पद ररक्त हो तो अवरोही क्रम
में सुंकणलत सूची के अनुसार सम्बज्यन्धत
वाडेन/णशणक्षका को समायोणजत णकया जाये।
उक्त जनपदीय सणमणत के प्रस्ताव के क्रम में
णजलाणिकारी
के
अनुमोदनोपरान्त
नवीन
सुंणवदा/पदस्थापन णकया जायेगा।

(ii) बेणसक णशक्षा पररषद द्वारा
सुंचाणलत उच्च प्राथणमक णवद्यालय में णनिाटररत
पाठ्यक्रम से इतर णवषय िाररत करने वाले
णशक्षक/णशणक्षका का पदस्थापन/नवीन सुंणवदा
की गयी है का सघन परीक्षि कर णलया जाये एुंव
णनःशुल्क और अणनवायट बाल णशक्षा का
अणिकार, अणिणनयम, 2009 की िारा 19 एुंव 25
में वणिटत मान एुंव मानकोुं की अनुसूची एुंव राि
पररयोजना कायाटलय के पत्र णदनाुंक 13.08.2018
एुंव 06.08.2019के आलोक में बेणसक णशक्षा
पररषद द्वारा सुंचाणलत उच्च प्राथणमक णवद्यालयोुं
में णनिाटररत पाठ्यक्रम के अनुसार ही कस्तूरबा
गाुंदी बाणलका णवद्यालयोुं हेतु पाठ्यक्रम/णवषय के
णशक्षक उपरोक्त मानकानुसार उक्त जनपदीय
सणमणत के प्रस्ताव के क्रम में णजलाणिकारी के
अनुमोदनोपरान्त
नवीन
सुंणवदा/पदस्थापना
णकया जायेगा।

(iii)
के०जी०बी०वी०
में
णशक्षक/णशणक्षका को मुख्य णवषयोुं यथा गणित,
णवज्ञान, सामाणजक णवषय, भाषा (णहन्दी एुंव
सुंस्कृत) एुंव अुंिेजी का पदस्थापन/नवीन सुंणवदा
वाडेन/फुल टाईम णशणक्षका में न करके
अुंशकाणलक के पद पर तथा वाडेन/पूिट काणलक
णशणक्षका को पाठ्य सहगामी णवषयोुं यथा
कम्प्यूटर, स्काउट गाइड एुंव शारीररक णशक्षा
कला क्राफ्ट एुंव सुंगीत णवषयोुं पदस्थापन/नवीन
सुंणवदा के पद पर णकया गया है।

उल्लेखनीय हैाै णक णनःशुल्क और
अणनवायट बाल णशक्षा का अणिकार अणिणनयम
2009 की िारा 19 एुंव 25 में वणिटत मान एुंव
मानकोुं की अनुसूची में णनम्नवत् व्यवस्था
उज्यल्लज्यखत है-
584 INDIAN LAW REPORTS ALLAHABAD SERIES

छठी से आठवी कक्षा के णलए 1.कम से
कम प्रणत कक्षा एक णशक्षक, इस प्रकार

 होगा
णक
णनम्नणलज्यखत प्रत्येक के णलए कम से कम

एक णशक्षक हो-

(i) णवज्ञान एुंव गणित।

(ii) सामाणजक अध्ययन।

(i) भाषा।

2. प्रत्येक पैंतीस बालकोुं
के णलए कम से कम एक णशक्षक।

 3. जहाुं एक सौ से
अणिक बालकोुं को प्रवेश णदया गया है वहाुं-

(i) एक पूिटकाणलक प्रिान
अध्यापक;

(अ) कला णशक्षा।

(आ)
स्वास्थ्य
और
शारीररक णशक्षा।

(इ) कायट णशक्षा। "

16. A counter affidavit has been filed
by
respondents.
The
circular
dated
14.7.2020 has been sought to be justified
on the ground that same has been issued to
ensure that quality education is provided to
girl students of KGBV by qualified
teachers.
It
is
further
asserted
that
engagement of contractual teachers in the
scheme for KGBV was reviewed and it was
found that more than one teacher/teachers
were working in one subject in various
KGBVs. Engagement of teachers in KGBV
was also found beyond the subjects
prescribed by the Board of Basic Education
for its curriculum. Part time teachers were
engaged
for
main
subjects
i.e.
Mathematics, Science, Social Science,
languages including English in place of full
time teachers and full time teachers were
appointed for subjects, which required part
time teachers in various KGBV. According
to respondents the engagement of teachers
is being regulated with reference to the
Schedule appended to Sections 19 and 25
of the RTE Act, 2009, and that exercise in
that regard is valid. Much emphasis has
been given to the provisions of the RTE
Act, 2009 to submit that the purpose of
issuing the circular is to ensure that
engagement of teachers remain absolutely
in consonance with the provisions of the
RTE Act, 2009. A subsequent directive of
the State Project Director dated 26.8.2020
has also been relied upon, as per which the
eligible teachers are, however, to be
adjusted where vacancies exist for the
specific posts.

17. A supplementary counter affidavit
has been filed by the third respondent
pointing out that petitioner no.1 in Writ
Petition No.6911 of 2020 was appointed as
full time teacher (Physical Education),
whereas petitioner no.2 was appointed as
part time teacher (Mathematics). Petitioner
no.3 was appointed as part time teacher
(Biology), petitioner no.4 was appointed as
full
time
teacher
(Computer)/Warden,
petitioner no.5 was appointed as part time
teacher (Commerce), petitioner no.6 was
appointed as part time teacher (Home
Science), petitioner no.7 was appointed as
full
time
teacher
(Arts/Music/Craft),
petitioner no.8 was appointed as part time
teacher, petitioner no.9 was appointed as
part time teacher (Science), petitioner no.10
was
appointed
as
full
time
teacher
(Arts/Music/Craft), petitioner no.11 was
appointed as full time teacher (Physical
Education)/Warden, petitioner no. 12 was
appointed as full time teacher (Physical
Education), petitioner no.13 was appointed
as part time teacher, petitioner no. 14 was
appointed as part time teacher (Social
Studies), petitioner no.15 was appointed as
3 All. Kuldeep Kumar Saxena & Ors. Vs. U.O.I. & Ors.
585
part time teacher (English), petitioner no.16
was appointed as part time teacher (Social
Studies), petitioner no.17 was appointed as
full time teacher (Physical Education),
petitioner no.18 was appointed as full time
teacher (Home Science), petitioner no.19
was
appointed
as
full
time
teacher
(Physical
Education)/Warden,
the
petitioner no.20 was appointed as part time
teacher (Mathematics) and the petitioner
no.21 was appointed as full time teacher
(Music/Arts/Craft).
With
reference
to
above, it is sough to be urged that
engagement of teachers was not in
accordance with the statutory scheme, and
therefore, the authorities have rightly
analyzed the factual scenario so that
engagement
of
teachers
remains
in
consonance with RTE Act, 2009.

18. Second supplementary counter
affidavit has been filed by respondents
stating therein that teachers engaged
contrary to the requirement have been
adjusted elsewhere. Details of some of the
teachers who have been adjusted has also
been brought on record. Similar orders
passed in respect of different districts,
adjusting teachers in different institutions
vide orders passed on 30.9.2021 have also
been brought to the notice of the Court to
substantiate the respondents' plea that their
exercise of adjustment is only to ensure that
the engagement of teachers remains as per
law.

19. Rejoinder affidavit has been filed
by petitioners denying the averments made
in the counter affidavit and reiterating the
plea taken in the writ petition.

20. It is urged on behalf of petitioners
that the subjects and course content for the
KGBV is based upon the curriculum
published by the Basic Shiksha Parishad in
which many subjects over and above those
specified in Schedule to Sections 19 and 25
of the RTE Act, 2009 are to be taught
including commerce, computer, geography,
agriculture, civics and moral science in
Classes VI to VIII, whereas the respondents
are now restricting the engagement of
teachers only to subjects specified in the
Schedule appended to Sections 19 and 25
of the RTE Act, 2009. It is urged on behalf
of petitioners that RTE Act, 2009 specifies
the minimum subjects to be taught in such
schools and it is always open for the
institutions to teach other subjects also but,
as per the curriculum issued by the Basic
Shiksha Parishad for Classes VI to VIII. It
is argued that subjects taught in addition to
those provided under the RTE Act, 2009
cannot be said to be irrelevant or
inconsistent, so as to disengage the teachers
employed for such subjects and have
continued for long of time.

21.
 Petitioners
also
urge
that
qualification of teachers is prescribed by
the statutory regulations framed by the
National Council for Teacher Education
(NCTE), from time to time, which makes
no distinction in the qualification of
teachers with reference to their subjects.
For Classes VI to VIII it is asserted that
qualification prescribed is trained graduate
with Teacher Eligibility Test (TET). It is
thus sought to be urged that in the absence
of
there
being
any
requirement
of
qualification in any particular subject for
engagement of teachers in the NCTE
regulations,
the
respondents
have
misdirected themselves in treating the
contractual teachers to be qualified to teach
only the subject in which they are
appointed.

22. On the strength of above,
petitioners
contend
that
the
exercise
586 INDIAN LAW REPORTS ALLAHABAD SERIES
initiated by the department by means of
impugned circular is clearly misdirected
and is otherwise inconsistent with the
scheme of the RTE Act, 2009 and the
NCTE regulations.

23. Sri Ashok Khare, learned Senior
Counsel for petitioners submits that though
the
authorities
could
scrutinize
the
engagement of contractual teachers with an
intent to renew their term but such
examination must remain relevant and be
based on provisions of law rather than a
misdirected
approach
based
on
an
erroneous understanding of law.

24. Sri Shashi Nandan, learned Senior
Counsel appearing for the State Project
Director, Sarva Shiksha Abhiyan, U.P.,
assisted by Sri Durga Singh, Advocate,
opposing the writ petition contends that the
circular in question merely ascertains
relevant information so that the KGBVs
function in accordance with the RTE Act,
2009. It is also argued on behalf of
respondents that they have complete right
to engage teachers for KGBV and the
authorities and are otherwise acting as per
law. Submission, accordingly, is that no
interference with the impugned circular is
thus called for. It is also urged that
irrespective
of
above
the
arguments
advanced in this bunch of writ petitions
have already been repelled by this Court in
a batch of writ petitions with leading Writ
Petition No.4845 of 2021, decided on
12.8.2021.

25. I have heard Sri Ashok Khare,
learned Senior Counsel assisted by Sri
Siddharth Khare in leading writ petition
and Sri Vivek Kumar Singh, Sri Amardeo
Singh, Sri Ajay Kumar, Sri Agnihotri
Kumar Tripathi, Sri Krishna Kumar Singh,
Sri Sandeep Kumar, Sri Awadh Bihari
Pandey, Sri Vikram Bahadur Singh, Sri
Indraj Raj Singh, Sri Krishna Kumar Singh
and Sri Vinay Kumar Singh for the
petitioners in connected writ petition,
learned
Standing
Counsel
for
the
respondent State, and Sri Shashi Nandan,
learned Senior Counsel assisted by Sri
Durga Singh has been heard for the
respondent State Project Director.

26. At the very outset it is first
necessary to meet the objection raised by
the counsel for the respondent that the
controversy raised in these bunch of writ
petitions has already been considered and
decided by this Court in a batch of writ
petitions
with
leading
Writ
Petition
No.4845 of 2021 (Suneeta Singh Vs. State
of U.P. and Others), vide judgment and
order dated 12.8.2021.

27. I have carefully perused and
examined the judgment delivered in Writ
Petition No.4845 of 2021 (Suneeta Singh
Vs. State of U.P. and Others). The
petitioners therein were also contractual
teachers engaged in KGBV and were
aggrieved
by
non-renewal
of
their
contractual appointment. The Court took
notice of various circulars including the
impugned circular dated 14.7.2020 but
clearly observed that the policy documents
contained in the circular dated 14.7.2020 is
not under challenge. The qualification to be
possessed by the KGBV teacher in light of
NCTE regulations has also not been
addressed or examined in the aforesaid
case. Neither the curriculum published by
the Basic Shiksha Parishad nor the question
has been considered whether the subjects
specified in the Schedule appended to
Sections 19 and 25 of the RTE Act, 2009
are exhaustive has also not been dealt with,
on which premise the entire exercise has
been undertaken by respondents. In such
3 All. Kuldeep Kumar Saxena & Ors. Vs. U.O.I. & Ors.
587
circumstances,
this
Court
is
of
the
considered opinion that questions raised in
this bunch of writ petitions were neither
raised nor decided in Writ Petition No.4845
of 2021 (Suneeta Singh Vs. State of U.P.
and Others) resultantly the arguments
raised in present writ petitions are required
to be considered by this Court.

28 . Having heard the respective
arguments advanced on behalf of the
parties and upon perusal of the materials
placed before the Court, the following
questions arise for determination:-

(i) Whether qualification for an
upper primary teacher is prescribed in law
with reference to particular subject and
therefore such teacher is required to
possess special knowledge in the subject
concerned?

(ii) Whether subjects specified in
Schedule to Section 19 and 25 of the RTE
Act, 2009 lay down the minimum subjects
to be taught in the KGBV institution,
leaving dispensation of education in other
subjects is permissible in KGBV?

(iii) Whether the classification of
teacher in KGBV as Sangat (consistent) or
Asangat (inconsistent), based on the subject
taught by them is a valid classification?

29. Perusal of impugned circular
would reveal that it proceeds on the
following two grounds:-

(i) that appointment of teacher in
an upper primary school is with reference
to the qualification held in the subject
taught.

(ii) that the Schedule appended to
Sections 19 and 25 of the RTE Act, 2009
restricts teaching in the subjects specified
therein and engagement of teacher in any
other subject is inconsistent with the RTE
Act, 2009.

30. According to the writ petitioners
the aforesaid grounds are flawed and are in
teeth of applicable statutes and hence are
liable to be quashed.

31. The scheme for appointment of
teachers in KGBV, therefore, needs to be
examined with reference to the applicable
laws.

32. The Constitution of India was
amended vide 86th Amendment Act,
2002 to incorporate Article 21A, which
contained a promise by State to provide
free and compulsory education to all
children in the age group of 06 to 14
years in the manner to be determined by
the State. Article 21A has already been
interpreted by the Supreme Court of
India to hold that right to education
means right to quality education and it
can be provided by qualified teachers
only (see: Environmental & Consumer
Protection
Foundation
Vs.
Delhi
Administration and Others, 2012 (4)
SCALE 243). In State of Tamil Nadu
Vs. K. Shyam Sunder, AIR 2011 SC
3470, the Supreme Court also observed
that the right of children should not be
restricted
to
free
and
compulsory
education, but must include quality
education without any discrimination on
the ground of their economic, social and
cultural background. Establishment of
KGBV is thus a forward step taken by
the State to secure the high objective of
Article 21A and addresses the cause of
education for a vulnerable class of
marginalized children.
588 INDIAN LAW REPORTS ALLAHABAD SERIES

33. Quality education can thus be
guaranteed only when the institution has
qualified teachers. With the object to secure
guaranteed
uniform
development
of
Teacher Education System throughout the
county and for maintenance of norms and
standards in Teaching Education System,
including qualification of school teachers,
Parliament enacted the National Council
for
Teacher
Education
Act,
1993
(hereinafter referred to as the ''Act of
1993'). Section 3 of the Act of 1993
contemplates the establishment of a council
to be called ''National Council for Teacher
Education' (hereinafter referred to as
''NCTE'). Section 12(d) of the Act of 1993
provided that one of the functions of the
NCTE would be to lay down guidelines in
respect of minimum qualifications for a
person to be employed as a teacher in
school. Section 12(a) was inserted in the
Act of 1993 enable the NCTE to determine
the minimum standards of education for
school children. Section 32 of the Act of
1993 conferred authority on the NCTE to
make regulations by issuing notification in
the official gazette on various subjects,
including the minimum qualification for a
person to be employed as a teacher. In
furtherance of the aforesaid Act of 1993
statutory regulations have been issued
subsequently prescribing the qualification
of teachers in school. ''School' in the Act of
1993 is defined under Section 2(ka) to
mean any recognized school imparting preprimary, primary, upper primary, secondary
or senior secondary education and include a
college
imparting
senior
secondary
education.

34. Parliament has therefore also
enacted The Right of Children to Free and
Compulsory Education Act, 2009 with an
intent to implement the promise guaranteed
in Article 21A of the Constitution of India.
Section 23 of the Act, 2009 also provides
for qualifications for appointment of
teachers and terms and conditions of
service of teachers to be such as is laid
down by the academic authority, authorized
by
the
Central
Government
vide
notification. The academic authority for the
purposes of Section 23 of the RTE Act of
2009
is
the
NCTE,
and
therefore
prescription of qualification by way of
regulations by the NCTE is also the
qualification for appointment as a teacher
under the Act of 2009. The qualification for
a teacher to be appointed in a Junior High
School, therefore, can only be such as is
prescribed by the NCTE regulations.

35. A notification has in fact been
issued by the NCTE exercising its powers
under Sub-section (1) of Section 23 of the
RTE Act, 2009 on 23rd August, 2010,
which has been amended on 29th July,
2011 prescribing following qualifications
for a teacher to be appointed for Classes VI
to VIII:-

"(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
3 All. Kuldeep Kumar Saxena & Ors. Vs. U.O.I. & Ors.
589

Senior
Secondary
(or
its
equivalent) with at least 50% marks and 4year Bachelor in Elementary Education
(B.Ei.Ed.)

OR

Senior
Secondary
(or
its
equivalent) with at least 50% marks and 4year B.A./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 Teacher Eligibility
Test (TET), to be conducted by the
appropriate Government in accordance
with the guidelines framed by the NCTE
for the purpose."

36. It may be observed that NCTE
regulations while prescribing the minimum
qualifications for appointment of teacher for
Classes VI to VIII merely requires a trained
graduate, who has passed Teacher Eligibility
Test. The qualification is not prescribed with
reference to any particular subject to be taught in
such classes. The circular issued by the State
Government on 29.7.2013 has also prescribed
the qualification for appointment in KGBV as
trained graduate with TET for higher primary
level (Classes VI to VIII). The statutory scheme,
therefore, makes it explicit that appointment of
teacher at upper primary level is trained graduate
with TET without any further qualification
specific to a particular subject.

37. No circular or notification by any
competent authority has been placed before
the Court, which may show that any other
qualification has been prescribed for
appointment of teachers in KGBV, except
trained graduate with TET.

38. The qualification for appointment
of a teacher in an upper primary school is
therefore, not with reference to any
particular subject.

39. Sri Shashi Nandan, learned Senior
Counsel for the respondents State Project
Director contends that a teacher must
possess requisite knowledge in a particular
subject before he can be allowed to teach
such
subject
in
the
upper
primary
institution.

40. Per contra, Sri Ashok Khare
submits that subject specific qualification
for teacher starts from IXth standard and
for classes below it the qualification
uniformly is trained graduate with TET. It
is further argued that TET has been
introduced by NCTE as an essential
eligibility qualification for Junior Primary
level and upper primary level, differently,
and teachers who qualify TET are expected
to be sufficiently equipped to teach
different subjects to students of such lower
classes. They are otherwise trained. An
attempt has also been made to suggest that
the course content for TET includes all
subjects that are taught to students upto
VIIIth standard, and therefore subject
specific qualification is not separately
provided for teachers upto Class VIIIth.