# Neeraj Kumar Rai & Ors v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 452
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-02-25
- **Bench:** Dr. Dhananajaya Yeshwant Chandrachud, C.J. Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neeraj-kumar-rai-ors-v-state-of-u-p-ors-43192
- **Pages:** 7

## Headnote

Education Act 2009-Section 23(1)-Power
of national council for teacher education -
amendment
in
criteria-prescribing
minimum academic qualification-eligibility
criteria from 45% to 50%-held-once
regulatory authority laid down minimum
qualification-not permissible for writ court
to sit over as expert body.
Held: Para-12
In our view, the true meaning of the
notification dated 29 July 2011 would
have to be construed on the basis of the
language of the notification as it stands.
If
NCTE
intends
to
make
eligible
candidates with a Postgraduate degree
with at least 50 percent marks, nothing
prevents the regulatory authority from
amending the notification. However, we
are emphatically of the view that once
an expert statutory body has been
vested under Section 23(1) of the Act of
2009 with the function of laying down
the
minimum
qualifications
for
appointment of teachers, it would not be
permissible for the Court under Article
226 of the Constitution to tinker with the
qualifications as prescribed or to expand
the ambit of the prescribed qualifications
by including a Postgraduate degree with
a stipulated percentage of marks as
sufficient compliance. These are matters
which lie in the realm of policy for the
expert authority. NCTE has sufficient
powers under the law to amend the
notification. The High Court cannot while
interpreting the notification rewrite the
language of the notification. The High
Court cannot add or include additional
categories.
Case Law discussed:
[2010 (7) ADJ 403 (FB)]; 2009 (1) ADJ 232.

## Text

452
 INDIAN LAW REPORTS ALLAHABAD SERIES
"15. A court of law even in a case
where provisions of the Indian Evidence Act
apply, may presume or may not presume that
if a party despite possession of the best
evidence had not produced the same, it
would have gone against his contentions.
The matter, however, would be different
where despite direction by a court the
evidence is withheld."
7. From the law laid down by Hon'ble
Supreme Court in the case of Director,
Fisheries Terminal Department (supra) and
also the law laid down by the Hon'ble
Supreme Court in the Case of R.M. Yellatti
Vs. Asstt. Executive Engineer (2006) 1 SCC
106 para 17 it is clear that in case of
termination of services of daily-wages
earner, there will be no letter of appointment
or termination. There will also be no receipt
or proof of payment. Thus the workman
(claimant) can only call upon the employer to
produce before the court the nominal muster
roll for the given period, the letter of
appointment or termination, if any, the wage
register, the attendance register etc. Drawing
of adverse inference ultimately would
depend thereafter on the facts of each case.
8. I find that that the petitioner has
pressed his application for summoning of
the relevant document, however, the
respondent No.1 did not pass any order on
the said application and merely observed
in concluding paragraph No.23 of the
impugned award that "I do not find that
there is any malafide intention of the
opposite party in withholding the records
because the opposite party, their witnesses
have specifically stated that the workman
did not work during the period 2005-06."
Thus the respondent No.1 merely relied upon
the allegations made by the Respondent No.2.
No reasons have been assigned by the
Respondent No.1 for the aforesaid conclusion.
The
Respondent
No.1
should
have
considered
the
application
of
the
petitioner for summoning of the records
and should have directed the Respondent
no.2 to produce the records in evidence.
The action of the Respondent No.2 in not
doing so cannot be sustained in view of
the law laid down by Hon'ble Supreme
Court in the cases of Director, Fisheries
Terminal Department (supra) and R.M.
Yellatti (supra).
9. In view of the above discussions,
the impugned award dated 31.12.2013
passed by the Respondent No.1 in
Industrial Dispute No. 25 of 2008 cannot
be sustained and is hereby set aside. The
matter is remitted back to the Respondent
No.1 to decide the aforesaid case afresh in
accordance with law after affording to the
parties concerned.
10. It is further directed that the
Respondent No.1 shall make effort to
decide the case as expeditiously as
possible preferably within a period of four
months from the date of production of a
certified copy of this order.
11. The writ petition is allowed to
the extent indicated above.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.02.2015
BEFORE
THE HON'BLE DR. DHANANAJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE SUNEET KUMAR, J.
Writ-C No. 50570 OF 2014
Neeraj Kumar Rai & Ors. ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
1 All] Neeraj Kumar Rai & Ors. Vs. State of U.P. & Ors.
453
Counsel for the Petitioners:
Shri Seemant Singh, Shri Sadanand Singh
Counsel for the Respondents:
C.S.C., Shri Anil Kumar Pandey, Shri Gyan
Prakash, Shri Kshetresh Chandra Shukla,
Shri R.A. Akhtar
Right of Children to Free and Compulsory
Education Act 2009-Section 23(1)-Power
of national council for teacher education -
amendment
in
criteria-prescribing
minimum academic qualification-eligibility
criteria from 45% to 50%-held-once
regulatory authority laid down minimum
qualification-not permissible for writ court
to sit over as expert body.
Held: Para-12
In our view, the true meaning of the
notification dated 29 July 2011 would
have to be construed on the basis of the
language of the notification as it stands.
If
NCTE
intends
to
make
eligible
candidates with a Postgraduate degree
with at least 50 percent marks, nothing
prevents the regulatory authority from
amending the notification. However, we
are emphatically of the view that once
an expert statutory body has been
vested under Section 23(1) of the Act of
2009 with the function of laying down
the
minimum
qualifications
for
appointment of teachers, it would not be
permissible for the Court under Article
226 of the Constitution to tinker with the
qualifications as prescribed or to expand
the ambit of the prescribed qualifications
by including a Postgraduate degree with
a stipulated percentage of marks as
sufficient compliance. These are matters
which lie in the realm of policy for the
expert authority. NCTE has sufficient
powers under the law to amend the
notification. The High Court cannot while
interpreting the notification rewrite the
language of the notification. The High
Court cannot add or include additional
categories.
Case Law discussed:
[2010 (7) ADJ 403 (FB)]; 2009 (1) ADJ 232.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, J.)
1. By these proceedings which have
been instituted by 31 petitioners under
Article 226 of the Constitution, there is a
challenge to the constitutional validity of
Clause (III) (i) (a) of a notification dated
29 July 2011 issued by the National
Council for Teacher Education1 for the
purpose of amending earlier notifications
laying down minimum qualifications of
eligibility for appointment as a teacher.
NCTE has issued the said notification in
exercise of powers conferred by Section
23 (1) of the Right of Children to Free
and Compulsory Education Act, 20092.
2. The petitioners have passed the
Teacher Eligibility Test3 after completing
their B Ed course and after being awarded
the degree qualification. Admittedly, the
petitioners did not secure more than 45
percent marks in the Bachelor's degree
examination. They obtained admission to
the B Ed course on the strength of having
obtained more than 50 percent marks in
the Postgraduate degree examination. The
State Government issued a Government
Order dated 27 September 2011 for
making
appointments
of
Assistant
Teachers
in
Junior
Basic
Schools.
Following an amendment made by NCTE
on 29 July 2011, the State Government
issued a Government Order dated 27
September 2011. An advertisement was
issued on 30 November 2011 by District
Basic Education Officers in the State for
appointments of teachers in Junior Basic
Schools, for teaching students between
the classes I to V. These facts are not in
dispute.
3. The Regulations framed by NCTE
in 2002, 2005 and 2007 provided, inter
454
 INDIAN LAW REPORTS ALLAHABAD SERIES
alia, for eligibility to seek admission to
the B Ed degree programme. In all the
three sets of Regulations, the requirement
of eligibility was that a candidate should
have obtained at least 45 percent marks
either in the Bachelor's degree or in the
Master's degree. Clause 4 of the 2002
Regulations provided that candidates with
at least 45 percent
marks in the
Bachelor's/Master's degree with at least
two school subjects at the Graduation
level would be eligible for admission.
Clause 3 of the Regulations of 2005,
contained a similar stipulation. Clause 3.2
of
the
2007
Regulations
similarly
provided for eligibility by stipulating that
candidates with at least 45 percent marks
either in the Bachelor's degree and/or in
the
Master's
degree
or
any
other
qualification
equivalent
thereto,
are
eligible for admission to the B Ed degree
programme. On 31 August
2009, a
notification was issued by NCTE under
which it was stipulated that, for admission
to the B Ed degree programme, a
candidate should have obtained either a
Bachelor's or Master's degree with at least
50 percent marks. The requirement of a
minimum of 45 percent marks in the
Bachelor's or Master's degree was, thus,
enhanced in the Regulations of 2009, to
50 percent.
4.
NCTE issued a notification on 23
August 2010, in exercise of powers
conferred by Section 23(1) of the Act of
2009 for the purpose of laying down
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 of 2009. Paragraph 3
of the notification provided for the training to
be undergone. On 29 July 2011, Para 3 of the
principal notification was amended. As
amended, the requirement is as follows:-
"(III) For para 3 of the Principal
Notification
the
following
shall
be
substituted, namely:-
(i) 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 to Class I to V up
to 1st January 2012, provided he/she
undergoes, after appointment, an NCTE
recognized 6-month Special Programme
in Elementary Education;
(b) with D. Ed. (Special Education)
or
B.
Ed.
(Special
Education)
qualification
shall
undergo,
after
appointment an NCTE recognized 6month Special Programme in Elementary
Education."
5. The grievance of the petitioners is
that they were not being considered for
selection and appointment as teachers in
Junior Basic Schools in pursuance of the
advertisements
issued
by
the
State
Government, on the ground that they had
not secured at least 45 percent marks in
the Graduation. The submission of the
petitioners is that in framing the amending
notification dated 29 July 2011, NCTE
has overlooked the position that a person
with at least 50 percent marks at the
Graduate or Postgraduate stage is eligible
for admission to the B Ed degree
programme. Consequently, it has been
urged that the requirement which has been
laid down in the notification dated 29 July
2011 should incorporate, in addition, a
Post-graduation with at least 50 percent
marks. This submission proceeds on the
basis that the notification dated 29 July
1 All] Neeraj Kumar Rai & Ors. Vs. State of U.P. & Ors.
455
2011 uses the expression "in accordance
with the NCTE (Recognition, Norms and
Procedure) Regulations issued from time
to time" in this regard. Based on those
words, it has been submitted that a person
who had received less than 45 percent
marks in the Graduation but had received
more than 50 percent marks in the Postgraduation was eligible for admission to
the B Ed degree course. Hence, there is no
reason or rational to exclude candidates,
such as the petitioners, who have secured
less than 45 percent marks in their
Graduation, so long as they have
completed the B Ed degree qualifications
on the strength of having obtained more
than 50 percent marks in the Postgraduate
degree programme.
6. This is the submission which falls
for consideration.
7. Now, at the outset, it must be
noted that there are two distinct facets.
The first is the requirement which has
been laid down by NCTE for securing
admission for the B Ed degree course.
The second is the requirement which has
been laid down by NCTE under Section
23 (1) of the Act of 2009 for teaching
classes I to VIII. Insofar as the eligibility
requirements for admission to the B Ed
degree
course
are
concerned,
the
Regulations framed by NCTE in 2002,
2005 and 2007 required a candidate to
obtain at least 45 percent marks either in
the Bachelor's degree course or in the
Master's degree course. In 2009, this
requirement of 45 percent marks at the
minimum was enhanced to 50 percent
when a notification was issued 31 August
2009.
8. The notification issued by NCTE
on 29 July 2011 under Section 23(1), on
the
other
hand,
prescribes
the
requirements in terms of minimum
qualifications and training for a teacher
for teaching students of classes I to VIII.
Section 23 of the Act of 2009, inter-alia,
provides as follows:-
"23. Qualifications 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.
(2) Where a State does not have
adequate institutions offering courses or
training in teacher education, or teachers
possessing minimum qualifications as laid
down under sub-section (1) are not
available in sufficient numbers, the
Central Government may, if it deems
necessary, by notification, relax the
minimum
qualifications
required
for
appointment as a teacher, for such period,
not exceeding five years, as may be
specified in that notification:
Provided that a teacher who, at the
commencement of this Act, does not
possess minimum qualifications as laid
down under sub-section (1), shall acquire
such minimum qualifications within a
period of five years.
9. Under sub-section (1) of Section
23, to be eligible for appointment as a
teacher, a person must possess such
minimum qualifications as are laid down
by an academic authority authorized by
the Central Government. NCTE is that
academic authority authorized by the
Central Government. Under sub-section
(2), the Central Government was vested
with the power to relax the minimum
qualifications required for appointment as
a teacher for a period of not more than
456
 INDIAN LAW REPORTS ALLAHABAD SERIES
five years, where the State did not have
adequate number of institutions offering
courses or training in teacher education,
or teachers possessing the minimum
qualifications laid down under sub-section
(1). Under the proviso to sub-section (2),
a teacher who, at the commencement of
the Act, did not possess the minimum
qualifications prescribed in sub-section
(1), was required to acquire them within a
period of five years. Now, while issuing
the
notification
on
29
July
2011
prescribing the training to be undergone,
NCTE stipulated two categories in Clause
(III) (i) (a). The first category consists of
persons with Graduation with at least 50
percent marks and a B Ed qualification.
The second category consists of persons
with a Graduation with at least 45 percent
marks and a one year B Ed in accordance
with the NCTE (Recognition, Norms and
Procedure) Regulations issued from time
to time. The separate requirements of at
least 50 percent marks in the Graduation
(for the first category) and 45 percent
marks in Graduation (for the second
category) are obviously made having due
regard to the fact that prior to 31 August
2009 and under the Regulations of 2002,
2005 and 2007, a Graduation with at least
45 percent marks was the eligibility
condition for admission to the B Ed
degree course (though, as we have noted,
a Post-graduation with a minimum of 45
percent marks was also eligible). With
effect
from
31
August
2009,
the
requirement of eligibility was enhanced to
50 percent marks in the Graduation or
Post-graduation for admission to the B Ed
degree course. Clause (III) (i) (a),
therefore, brought within its purview
candidates who have at least 45 percent
marks or, as the case may be, at least 50
percent marks in the Graduation having
due regard to the provisions of the
Regulations of 2002, 2005, 2007 and
2009. Significantly, NCTE, while framing
the requirement in the notification of 29
July 2011, did not contemplate that those
with a Postgraduate degree with at least
45 percent or 50 percent marks, as the
case may be, would be brought within the
purview of the notification. NCTE could
have but has not done so. We are unable
to read into the words "in accordance with
the NCTE (Recognition, Norms and
Procedure) Regulations issued from time
to time" an implicit addition of a Postgraduation with at least 45 percent marks
so as to cover those candidates who may
not have secured at least 45 percent marks
in
the
Graduation.
Eligibility
for
admission to the B Ed degree course is
one thing and the requirement for
teaching students of classes I to V is quite
another. The notification dated 29 July
2011 lays down minimum qualifications
for a person to be eligible for appointment
as a teacher. In our view, there is nothing
arbitrary or unconstitutional in NCTE
laying down the requirement that in order
to provide instruction in Junior Basic
Schools for teaching students from classes
I to VIII, a person must be a Graduate
with at least a minimum of marks as
stipulated therein. Hence, merely because
the petitioners have obtained more than
50 percent marks in the Postgraduate
degree, that would not make them eligible
in terms of Clause (III) (i) (a) of the
notification dated 29 July 2011 when,
admittedly, they do not have a minimum
of 50 percent marks in the Graduation.
10. Reliance was sought to be placed
on behalf of the petitioners on a counter
affidavit which has been filed on behalf of
the NCTE in the present proceedings.
Paragraphs 5 and 6 of the affidavit read as
follows:-
1 All] Neeraj Kumar Rai & Ors. Vs. State of U.P. & Ors.
457
"5. That on the issue of prescribing
minimum marks, these minimum marks
were stipulated in accordance with the
minimum marks required for seeking
admission in the B. Ed Course as laid
down in the NCTE (Recognition, Norms
and Procedure) Regulations, notified from
time to time. As per NCTE's Regulations
2007/2009, the entry qualification for B.
Ed is as under:
"Candidates with at least 45%/50%
marks either in the Bachelor's Degree
and/or in the Master's Degree or any other
qualification
equivalent
thereto,
are
eligible for admission to the programme."
Accordingly, in case, the candidate
has acquired the minimum percentage of
marks as per NCTE's Regulations either
in Bachelor's Degree and/or in the
Master's Degree or any other qualification
equivalent thereto, is eligible to appear in
Teacher Eligibility Test by virtue of the
NCTE's Regulations in this regard.
6. That as regards another claim of
the petitioner with regard to becoming a
school teacher merely by acquiring a
teacher education qualification, it may be
mentioned that acquiring a degree or
diploma in various teacher education
courses does not confer any right of such
person to become a teacher. It merely
makes
such
a
person
eligible
for
appointment as school teacher. It is for the
appointment authority or the recruitment
agency to appoint teachers in accordance
with the extant recruitment rules. The
notification issued by the NCTE laying
down the teacher qualifications is in
accordance with the mandate given to it
by the Central Government for setting the
norms from the view point of quality.
Accordingly the various qualifications
specified in the NCTE notification
including the requirement of passing TET
are in accordance with law. The contention
of the petitioners that by acquiring a teacher
education qualification a right has been
conferred upon them to become a school
teacher, as per prevailing recruitment rules at
the
time
of
obtaining
the
teacher
qualification, is not tenable in the eyes of
law."
11. Similarly, reliance was placed on
a counter affidavit filed by the NCTE in
Special Appeal No 2076 of 2011 in
similar terms.
12. In our view, the true meaning of
the notification dated 29 July 2011 would
have to be construed on the basis of the
language of the notification as it stands. If
NCTE intends to make eligible candidates
with a Postgraduate degree with at least 50
percent
marks,
nothing
prevents
the
regulatory authority from amending the
notification. However, we are emphatically
of the view that once an expert statutory
body has been vested under Section 23(1) of
the Act of 2009 with the function of laying
down the minimum qualifications for
appointment of teachers, it would not be
permissible for the Court under Article 226
of the Constitution to tinker with the
qualifications as prescribed or to expand the
ambit of the prescribed qualifications by
including a Postgraduate degree with a
stipulated percentage of marks as sufficient
compliance. These are matters which lie in
the realm of policy for the expert authority.
NCTE has sufficient powers under the law to
amend the notification. The High Court
cannot while interpreting the notification
rewrite the language of the notification. The
High Court cannot add or include additional
categories.
13.

Learned
Senior
Counsel
appearing on behalf of the petitioners has
sought to place reliance on two Full Bench
458
 INDIAN LAW REPORTS ALLAHABAD SERIES
judgments of this Court. The judgment of the
Full Bench in Jitendra Kumar Soni Vs State
of U P4 held that it was not open to the State
Government to exclude students who had
obtained their degree or diploma, inter alia,
in LT/B P Ed/D P Ed/C P Ed from
institutions and universities established by
law situate at places outside the State and
duly recognized by NCTE from applying
either for the Special BTC or BTC course.
The second judgment of the Full Bench in
Bhupendra Nath Tripathi Vs State of U P5
held, inter-alia, that a degree which was
being granted earlier by Universities in
exercise of powers under Section 22 of the
University Grants Commission Act, 1956
could not be inferior than a degree of B Ed
now awarded from institutions after their
recognition under Section 14 (3) of the
NCTE Act, 1993. The Full Bench held that
the exclusion of candidates (from the field of
eligibility for the Special Basic Training
Course 2007) who have obtained a B Ed
degree prior to the enforcement of the NCTE
Act, 1993 or after the enforcement thereof
during the period when the application of the
institution or university for recognition was
pending consideration, would be violative of
Article 14 of the Constitution. Neither of the
two decisions of the Full Bench have any
relevance to the issue which has been raised
in these proceedings. Plainly, the petitioners
do not meet the requirements contained in
the notification dated 29 July 2011.
14. For these reasons, we hold that
there is no substance in the writ petition.
The petition shall stand, accordingly,
dismissed. However, there shall be no
order as to costs.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.01.2015
BEFORE
THE HON'BLE RAMESH SINHA, J.
Application u/s 482 No. 50877 of 2014
Gajraj Singh
 ...Applicant
Versus
State of U.P.
...Opp. Party
Counsel for the Applicant:
Sri Ajay Vashistha
Counsel for the Opp. Party:
Govt. Advocate.
Cr.P.C. Section 482-Release of minor
girl-offence u/s 363/366 IPC-rejection
of ground being minor-of age 17 years 6
month 5 days-in view law laid down by
Apex Court in Smt. Parvati Devi and
Kalyani Chaudhary-even a minor can not
be detained in Nari Niketan against her
will-being girl-detention amounts illegal
confinement-order impugned quasheddirection to release forthwith to go
anywhere according to her wish.
Held: Para-8
In the case in hand, the question of the
applicant being a minor is irrelevant as even
a minor cannot be kept in protective home
against her will. The applicant may hardly
be said that she is not a women or girl
which
come
within
a
preview
of
Suppression of Immoral Traffic in Women
and Girls Act. Thus, it is clear cut case of
illegal confinement of minor against her
wishes violating fundamental right. Hence,
the impugned order dated 26.05.2014
passed by the Special Judge/ Additional
Sessions Judge, Court No.1, Kasganj is
hereby quashed and it is directed the
Superintendent of Nari Niketan, Mathura to
release the victim Dolly daughter of Gajraj
Sing be set at liberty to go in according to
her own wish.
Case Law discussed:
1992 All Crl. Cases 32; 1978 Criminal Law
Journal 103.
(Delivered by Hon'ble Ramesh Sinha, J.)