# Mahesh Chand v. B. Janardhan Reddy

- **Citation:** (2009) 3 ILRA 985
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-11-05
- **Case number:** Civil Misc. Writ Petition No.42640 of 2009
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-chand-v-b-janardhan-reddy-41599
- **Pages:** 8

## Headnote

Constitution
of
India-Article
14discrimination-exclusion from eligibility
of B.Ed. degree holders from the State of
J. & K for Special B.T.C. Training Course
2007-held-not discriminatory.

Held: Para 21

In these set of circumstances if the State
with reference to the letter of the NCTE
has decided to entertain the applications
of the candidates who have obtained a
B.Ed.
Degree
from
the
institutions
recognized by NCTE or who under the
Full Bench judgment of the High Court
may
become
entitle
to
such
consideration
alone.
Such
decision
cannot be termed as arbitrary in view of
the specific norms of teachers education
provided under the NCTE Act which are
not applicable to the institutions in
Jammu & Kashmir. The candidate with a
Degree of B.Ed. from institutions in
Jammu & Kashmir form a different class
and if such class of candidates have been
excluded
from
consideration
for
admission
to
BTC
Special
Training
Course, 2007 by the State Government
purposely, it cannot be said to be
violative of Article 14 of the Constitution
of India. Such action of the district
authorities to exclude the candidates like
986 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
the
petitioner
from
the
zone
of
consideration is in conformity with the
terms and conditions laid down in the
Government Order issued under the
permission granted by the NCTE.
Case law discussed:
(2006) 9 SCC, 1.

## Text

3 All] Smt. Sadhana Singh V. State of U.P. and others
985
has held that even after accepting the final
report, cognizance of the offence can be
taken on the complaint/protest petition
filed by the complainant on the same or
similar allegations. Therefore, having
regard to the law laid down by the
Hon'ble Apex Court in the case of
Mahesh Chand Vs. B. Janardhan Reddy
(supra) and the observations made by the
Division Bench of this Court in the case
of Pakhando Vs. State (supra) if would
be in the interest of justice to send the
cases back to the court below for passing
order on the protest petitions treating the
same as complaint and following the
procedure laid down in Chapter XV
Cr.P.C.

14.

Consequently,
both
the
applications under Section 482 Cr.P.C.
are allowed. Setting aside the impugned
orders, the courts below are directed to
pass orders on the protest petitions filed
by the applicants against final reports in
both the cases, treating the same as
complaint and following the procedure
laid down under section 200 and 202
Cr.P.C.

15. This order shall form part of the
record of Criminal Misc. Application No.
19770 of 2009 and copy thereof will be
kept on the record of Criminal Misc.
Application No.19771 of 2009.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.11.2009

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No.42640 of 2009

Smt. Sadhana Singh

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

Counsel for the Petitioner:
Sri Shatrughan Singh

Counsel for the Respondent:
C.S.C.

Constitution
of
India-Article
14discrimination-exclusion from eligibility
of B.Ed. degree holders from the State of
J. & K for Special B.T.C. Training Course
2007-held-not discriminatory.

Held: Para 21

In these set of circumstances if the State
with reference to the letter of the NCTE
has decided to entertain the applications
of the candidates who have obtained a
B.Ed.
Degree
from
the
institutions
recognized by NCTE or who under the
Full Bench judgment of the High Court
may
become
entitle
to
such
consideration
alone.
Such
decision
cannot be termed as arbitrary in view of
the specific norms of teachers education
provided under the NCTE Act which are
not applicable to the institutions in
Jammu & Kashmir. The candidate with a
Degree of B.Ed. from institutions in
Jammu & Kashmir form a different class
and if such class of candidates have been
excluded
from
consideration
for
admission
to
BTC
Special
Training
Course, 2007 by the State Government
purposely, it cannot be said to be
violative of Article 14 of the Constitution
of India. Such action of the district
authorities to exclude the candidates like
986 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
the
petitioner
from
the
zone
of
consideration is in conformity with the
terms and conditions laid down in the
Government Order issued under the
permission granted by the NCTE.
Case law discussed:
(2006) 9 SCC, 1.

(Delivered by Hon'ble Arun Tandon, J.)

1. This bunch of writ petitions has
been filed for a writ of mandamus
commanding the Director, State Council
for Educational Research and Training,
U.P. Nishatganj, Lucknow as well as
Principal of District Institute of Education
and Training of various districts of State
of Uttar Pradesh to not to reject the
application made by the petitioners for
admission to Special BTC Training
Course, 2007 only on the ground that they
had obtained a Degree of B.Ed. from an
institution/University situate in the State
of Jammu & Kashmir.

2. Facts giving rise to the present
writ petition in short are as follows:

On 14.11.2008 the State Government
after obtaining permission from National
Council for Teachers Education (NCTE)
decided to admit students to Special BTC
Training Course of the year 2007.
Accordingly an advertisement has been
published. Besides other one of the
essential conditions provided for being
considered for admission to aforesaid
Special BTC Course is that the candidate
must have a Degree of B.Ed. From a
Degree College established by the State
Government/Central
Government/a
recognized affiliated Degree College,
duly approved by the NCTE for the B.Ed.
Course. Since the issue raised in the
present writ petitions is confined to the
aforesaid
condition
only,
all
other
conditions mentioned in the Government
Order are not being referred to.

3. The petitioners before this Court
claim that they have obtained a Degree of
B.Ed.
from
an
educational
institute/University situate in the State of
Jammu & Kashmir. According to the
petitioners as per Section 1 (2) of the
NCTE Act, 1993, the area of operation of
the aforesaid Act is the entire country of
India except the State of Jammu &
Kashmir. It is contended that the
eligibility clause under the Government
Order which requires a candidate to be
possessed of a Degree of B.Ed. from
institute/University duly approved by
NCTE
(for
grant
of
such
Degree/Certificate) cannot be applied qua
the candidates like the petitioners who
have obtained the B.Ed. Degree from an
institution within the State of Jammu &
Kashmir. Therefore, it is prayed that the
applications made by the petitioner be
directed to be entertained by the State
respondents as petitioners have a Degree
of
B.Ed.
from
a
University
duly
established.

4. On behalf of the writ petitioners a
large number of interim orders which
have been granted in similar matters have
been referred to.

5. The contention raised on behalf of
the writ petitioners is opposed by the
Standing Counsel and it is submitted that
the State Government has the competence
to lay down the norms and conditions for
admission to Special BTC Training
Course 2007 inasmuch as the purpose of
such Special BTC Training Course is to
train the candidates for appointment as
Assistant
Teacher
in
Parishadiya
Vidyalayas,
appointment
whereof
is
3 All] Smt. Sadhana Singh V. State of U.P. and others
987
regulated by the U.P. Basic Education
Teachers Service Rules, 1981. He
submits that the State Government in its
wisdom had decided to permit admission
to Special BTC Course to only those
candidates who have a Degree of B.Ed.
from duly established Degree Colleges
which have been approved for B.Ed.
Course by the NCTE. It is clarified that
NCTE Act, 1993 has been promulgated
by the Parliament for regulating the
standards
of
teachers
training
for
appointment from the stage of Nursery
schools to the stage of Secondary
Education throughout the country. If the
State Government insists that a candidate
for admission to BTC Special Course
must have obtained his B.Ed. Degree
from NCTE Recognized College, it
cannot be said that such condition is
arbitrary. It is clarified that the State is
presumed to know that the NCTE Act is
not applicable to the State of Jammu &
Kashmir
and,
therefore,
it
has
conscientiously decided to exclude the
candidates like the petitioners who have a
Degree from institutions which cannot be
granted recognition by NCTE.

6. I have heard learned counsel for
the parties and have gone through the
records of the present writ petition.

7. The State legislature by means of
U.P. Basic Education Act, 1972 has
constituted U.P. Basic Shiksha Parishad
which in turn has established Parishadiya
Vidyalayas throughout the State of U.P.
for imparting education from classes
Nursery to Class VIII. The institutions
have
been
categorized
as
Nursery
Schools, Junior Basic Schools and Senior
Basic Schools (herein after referred to as
as Basic Schools). For appointment of
teachers in these Basic Schools a set of
statutory Rules have been framed namely
U.P. Basic Education (Teachers) Service
Rules, 1981 (herein after referred to as
Rules of 1981) in exercise of power under
Section 9 of the U.P. Basic Education
Act, 1972. Rule 8 of the Rules of 1981
lays down the essential qualification for
appointment of Assistant Master and
Assistant Mistress of Basic Schools.
According to it a candidate has to be
possessed of Bachelor's Degree from a
University established by law in India
together
with
Teachers
Training
qualification namely a Basic Teacher's
Certificate, HTC etc. or any other training
qualification
recognized
by
the
Government as equivalent thereto.

8. Thousands of post of Assistant
Teacher in Basic Schools are vacant due
to non-availability of candidates having
Basic
Teacher's
Training
Certificate
(BTC), HTC etc.

9. The Basic Training Course is
offered by District Institute of Education
and Training (herein after referred to as
the DIET) established by the State in
different districts. However, the intake of
the students for imparting training in
respective DIET's is limited. The number
of candidates who have regular Basic
Teachers Training is too meager to cope
with
the
requirement
of
Assistant
Teachers in Basic School. To meet the
requirements of Assistant Teacher in
basic schools, the State formulated a
scheme for imparting Special Basic
Training to the candidates, who are
already B.Ed., knows as Special Basic
Training Course. The case in hand relates
to Special Basic Training Course 2007.

10. The Parliament has enacted the
National Council for Teacher Education
988 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Act, 1993 (herein after referred to as the
Act of 1993) with a view to achieve
planned and coordinated development for
teacher's education for the regulation and
proper
maintenance
of
norms
and
standards in the teacher's education and
for matter connected therewith. Prior to
enforcement of the Act of 1993, the
National Council for Teacher Education
was in existence since 1973 to guide the
system of teacher education as an
advisory body till it was declared as an
statutory body with the functions and
object entrusted to it under the Act of
1993. The National Council for Teacher
Education Act, 1993 has been enforced
w.e.f. 1st July, 1995 by virtue of
notification
issued
by
the
Central
Government under Section 1 (3) of the
1993 Act. The Act of 1993 has been
enacted by Parliament in exercise of
power under Entry 66 of the Union List of
Seventh Schedule of the Constitution of
India.

11. A Constitution Bench of the
Apex Court in the case of State of
Maharashtra vs. Sant Dhyaneshwar
Shiksha Shastra Mahavidyalaya and
others reported in (2006) 9 SCC, 1 had
the occasion to consider the provisions of
National Council for Teacher Education
Act, 1993 in context of power of the State
regarding
recognition
of
educational
institution to start B.Ed. course. The Apex
Court in paragraph 62 and 63 has held as
follows :

"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 establishments National
Council for Teacher Education (NCTE)
with a view to achieving planned and
coordinated development of the teacher
education system throughout the country,
the regulation and proper maintenance of
norms and standards in the teacher
education
system
and
for
matters
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 no ? policy consideration?.

12. The permission to run the
Special Basic Training Course 2007 has
been granted by the Regional Committee
under Section 15 of the Act of 1993. It is
useful to quote the relevant portion of
3 All] Smt. Sadhana Singh V. State of U.P. and others
989
order of the Regional Committee granting
permission to run Special Basic Training
Course vide its order dated 27th June,
2007, which reads as follows :

"Whereas, NRC in its 118th (1st
sitting) meeting held on 16th - 18th June,
2007 after thorough discussion and
observation related documents, noted the
following:-

As per proposal submitted by the
Government, it has been informed that
admission will be granted in this special
programme of six months duration only to
those candidates who are already B.Ed.

The NRC appreciated the proposal of
U.P.
Government
decided
to
grant
approval to conduct the special BTC
programme bridge course as proposed by
the state. It will be only one approval.
Teachers are to be trained only in DIETs
recognizes NRC-NCTE. The committee
also observed that as this programme will
be conducted only in recognised DIETs,
so there is not for any inspection.

Now, therefore, in exercise of the
powers vested Section 15(3)(b) of the
NCTE Act, the Regional Commissioner
hereby grants one time approval for
training
60,000
candidates
primary
teachers who are already B.Ed. subject to
the fulfil of the following :

a. The teachers are to be trained only in
the list of recognised by NRC-NCTE.

b. The SCERT to submit the date of
commence of the course along with the
list of the recognized where the proposal
training is to be conducted.

c. The quarterly progress report of the
programme to be submitted to NRCNCTE.

d. The curriculum as finalized in the
meeting between NCTE and the State
Government of U.P. followed for the
programme.?

13. From the above quoted order of
the NCTE, it is clear that NCTE granted
permission to run the Special Basic
Training Course for the candidates, who
are already B.Ed.

14. The Full Bench of this Court in
the case of Bhupendra Nath Tripathi and
others vs. State of U.P. and others
(Special Appeal No. 858 of 2008) had
examined the following three issues:

(I) Whether after the enforcement of
1993 Act the candidates who obtained
B.Ed. degree from an institution or a
University during the period when the
application of the Institution or University
for grant of recognition was pending are
eligible for Special B.T.C. Course-2007
as held by Division Bench judgement in
Ekta Shukla's case?

Whether
the
candidates
who
have
obtained degree from an institution or
University recognised by NCTE are only
eligible for Special B.T.C. Course 2007 as
held by Division Bench judgement in
Sanjai Kumar and Sunita Upadhyay's
case?
Or
(II) Whether recognition, as referred to in
the proviso to Section 14(1) of the
N.C.T.E. Act 1993 Act can be treated to
be deemed recognition under the 1993
Act of an institution or a University for
the period application were pending ?
990 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
(III) Whether the exclusion of those
candidates from field of eligibility for
Special B.T.C. Course ? 2007 who have
obtained
B.Ed.
degree
prior
to
enforcement of 1993 Act or after the
enforcement of 1993 Act during the
period when the application of the
Institution or the University was pending
consideration,
is
arbitrary
and
unreasonable violative of Articles 14 and
16 of the Constitution of India ?

15. The Full Bench after referring to
the words who are already B.Ed. has held
that the permission does not require that
such B.Ed. Degree should have been
obtained from
a NCTE recognized
institution alone and no such limited
interpretation or scope is contemplated in
the letter of the NCTE granting the
permission.

16. The aforesaid observation of the
Full Bench in the case of Bhupendra Nath
Tiwari have to be read with reference to
the questions which were examined as
quoted above inasmuch as the Full Bench
even
after
making
the
aforesaid
observations in its answer to question no.
1 has held as follows :

17.. "The candidates, who have
B.Ed. degree obtained from an institution
or University during the period when the
application of the institution or the
University for grant of recognition under
Section 14 of National Council for
Teacher
Education
Act,
1993
was
pending, are eligible for Special Basic
Training Course 2007 as laid down by the
Division Bench in Ekta Shukla's case
(supra)?.

18. Similarly while answering
question no. 2 it has been held as follows:
"The proviso to Section 14(1)
recognizes continuance of the course,
which was being run immediately before
the appointed day provided application is
submitted within the continuance of such
course is deemed recognition of such
course and degree awarded therein by
express provisions of proviso to Section
14(1) of National Council for Teacher
Education Act, 1993."

Lastly while answering question no. 3 it
has been held as follows:

"The exclusion of the candidates
from the field of eligibility for Special
Basic Training Course 2007, who have
obtained
B.Ed.
degree
prior
to
enforcement of National Council for
Teacher Education Act, 1993 or after the
enforcement of National Council for
Teacher Education Act, 1993 during the
period when the application of the
institution or the University was pending
consideration is arbitrary, unreasonable
and violative of Articles 14 and 16 of the
Constitution of India. The above two
categories of candidates are also eligible
to participate in Special Basic Training
Course 2007."

It will thus be seen that the Full
Bench of this Court has not held that any
candidate who has obtained a Degree of
B.Ed. subsequent to the enforcement of
NCTE Act of 1993 from an institution
whose application for approval was not
pending consideration before the NCTE
or was rejected to be qualified for the
purposes of admission to BTC Course,
2007. The Full Bench has recognized the
B.Ed.
Degree
granted
prior
to
enforcement of Act of 1993 or such B.Ed.
Degrees granted by only those institutions
which had made their applications for
3 All] Smt. Sadhana Singh V. State of U.P. and others
991
recognition to the NCTE after coming
into the force of NCTE Act but their
recognition applications had not been
finally decided.

The students who had a degree of
B.Ed. from other two categories of
institutions i.e.:

a. the institution which did not
make any application for recognition after
coming into the Act of 1993.
b. The institutions which made the
applications but their applications had
been rejected by the NCTE on various
grounds have not been held entitled for
admission to Special BTC Course, 2007.

This Court has been made aware of
the interim order passed by the Hon'ble
Apex Court in the Special Leave to
Appeal against the Full Bench judgment
of this Court in the Case of Bhupendra
Nath Tripathi which in the opinion of the
court does in any way help the petitioners.

The issue before this Court is more
or less similar to the category of
institutions who had not made the
applications for recognition even after
coming into force by NCTE Act of 1993.
The only difference being that the
institutions in the State of Jammu &
Kashmir can not make such applications
as the Act of 1993 had no territorial
application in that State.

19. In the opinion of the Court the
State of U.P. in its wisdom has decided to
entertain applications of those candidates
only who have obtained a Degree of
B.Ed. from the institution recognized by
NCTE. The words had a Degree of B.Ed.
even if given the broader interpretation as
per the answers given by the Full Bench
in the case of Bhupendra Nath Tripathi to
question nos. 1, 2 and 3 will not cover an
institution situate in the State of Jammu &
Kashmir inasmuch as qua the State of
Jammu & Kashmir, the NCTE Act has no
territorial operation. Therefore, the issue
of any approval being applied or being
granted by the NCTE to such institutions
of the State of Jammu & Kashmir will not
arise.

20. The competence of the State
Government to lay down the conditions
for entertaining the applications for
admission to BTC Course 2007 as well as
those which flow from the letter of the
NCTE while granting permission to start
Special BTC Course 2007 are not under
challenge.

21. In these set of circumstances if
the State with reference to the letter of the
NCTE has decided to entertain the
applications of the candidates who have
obtained a B.Ed. Degree from the
institutions recognized by NCTE or who
under the Full Bench judgment of the
High Court may become entitle to such
consideration alone. Such decision cannot
be termed as arbitrary in view of the
specific norms of teachers education
provided under the NCTE Act which are
not applicable to the institutions in Jammu
& Kashmir. The candidate with a Degree
of B.Ed. from institutions in Jammu &
Kashmir form a different class and if such
class of candidates have been excluded
from consideration for admission to BTC
Special Training Course, 2007 by the
State Government purposely, it cannot be
said to be violative of Article 14 of the
Constitution of India. Such action of the
district
authorities
to
exclude
the
candidates like the petitioner from the
zone of consideration is in conformity
992 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
with the terms and conditions laid down
in the Government Order issued under the
permission granted by the NCTE.

22. Writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.10.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 57354 of 2009

C/M Lok Bharti Inter College & another

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

Counsel for the Petitioner:
Sri Chandra Shekhar Srivastav
Sri Sudhanshu Srivastava

Counsel for the Respondent:
Sri P.K. Srivastava
Sri N.S. Yadav
Sri Ajay Kumar Yadav
C.S.C.

Constitution of India Art-226-Natural
justice-Dismissal
order
passed-in
absence of reply filed by the petitionerinspite of repeated request to supply the
copy
of
complaint
for
proper
explanation-not
given
even
of
the
direction of Court-held- non sustainablenon supply of copy cause great prejudice
the petitioner-order impugned quashed.

Held: Para 6

In the opinion of the Court non-supply of
the said document to the petitioner
inspite of repeated demands violates the
principles of natural justice and the
Court is supported in its opinion by the
Division Bench in the case Rayeen Fruits
Co. and others Vs. State of U.P. and
others reported in 2000 RD 440 and M/s
Nagarjuna Constructions Co. Vs. Govt. of
A.P. and others reported in 2008(12) JT
371 Paragraph 30. On account of nonsupply of the objection filed by the
respondent
no.4
the
cause
of
the
petitioner
has
been
prejudiced
and
therefore, the order impugned dated
13.10.2009 is un-sustainable.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Sri Sudhanshu Srivastava
learned counsel for the petitioner and Sri
P.K.Srivastava for the respondent no.4
and the learned standing counsel for the
respondent nos. 1,2 and 3. In view of the
consent of the learned counsels the
petition is being disposed of finally at this
stage
without
awaiting
any
further
affidavits.

2. The prime issue raised by the
petitioner in this petition is that the
impugned order dated 13.10.2009 is in
violation of principles of natural justice
inasmuch as the directions of this Court in
the judgment dated 3.8.2009 have not
been complied with in right earnest and
the petitioner's claim has been non-suited
without letting the petitioner know about
the objection raised by the respondent
no.4. Learned counsel for the petitioner
contends that on account of the aforesaid
twin errors committed by the District
Inspector of Schools the impugned order
is liable to be set aside as it is in gross
violation of principles of natural justice.

3. Learned counsel for the petitioner
contends that there is no indication or
mention of the demand made by the
petitioner for supplying a copy of the
reply submitted by the respondent no.4 on
29.9.2009.