# Neeta James v. State of U.P. & Ors

- **Citation:** (2019) 3 ILRA 275
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-17
- **Case number:** Civil Misc.Writ Petition No. 66745 of 2012
- **Bench:** Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neeta-james-v-state-of-u-p-ors-44859
- **Pages:** 15

## Headnote

A. Service Law - Education Service -
Payment of Salary - U.P. Recognized
Basic School Recruitment (Junior High
School) (Recruitment and Conditions of
Service of Teachers) Rules, 1978: Rule
4(1); U.P. Basic Education Act, 1972;
U.P. Junior High School (Payment of
Salary of Teachers and other employees)
Act, 1978 - Unamended Rule 4(1) of the
Rules, 1978 did not recognize the B.Ed
qualification as a training qualification
for recruitment of teachers in recognized
Junior Basic Schools.

The use of words "such as" in Rule 4(1)
(original Rule, 1978) cannot be said to be
inclusive and is not open for scrutiny before
this Court. Relying upon various precedents
the Court held that prescribed training
qualification under the unamended Rule 4(1)
of the Rules, 1978 did not recognize the B.Ed
qualification as a training qualification for
recruitment of teachers in recognized Junior
Basic Schools. The Amending Rules' of 2008
was not clarificatory and the appointment
made prior to the said amendment would be
governed by the unamended rule. (Para 29)

B. Service Law - Education Service -
Termination
-
Petitioners
had
not
obtained appointment by any fraudulent
method. Therefore, the impugned order
and the consequential orders of the
Manager of the Institution discontinuing
their services w.e.f. 10.11.2012 were
quashed. (Para 34)

Petition partly allowed with directions
not to be treated as precedent (E-4)

Precedent followed: -

## Text

_Characters 0–39,989 of 47,331. This is a partial read: ask again with offset=39989 for what follows._

3 All. Shakuntala Singh Vs. State of U.P. & Ors.
275
Retirement Benefit Rules, 2011, provides
that the Government Orders pertaining to
pension and family pension applicable to
Government Servants would apply to the
employees
of
the
Development
Authorities. In that event, petitioner
cannot claim anything beyond that what is
conferred by the Government Order. In
view thereof, the plea for arrears of
revised pension w.e.f. 1 January 2006 is
untenable, accordingly, rejected.

71. It is not being disputed by the
respondent-Development Authority that the
retiral dues was paid to the petitioner in two
installments at a belated stage after four years
from the due date. That apart, petitioner has
been subjected to harassment at the hands of
the fifth respondent by sending defective and
wrong PPO and communication to the bank
which deprived her of her monthly family
pension for considerable long period. The
PPO was not rectified despite knowledge and
information to the fifth respondent. In the
circumstances, petitioner is entitled to interest
on delayed payment.

72. In D.D. Tewari v. Uttar
Haryana Bijli Vitran Nigam Ltd.23,
Supreme Court held that the pension and
gratuity are not bounty to be distributed
by the Government to its employees on
their retirement, but are valuable rights
and property in their hands and any
culpable
delay
in
settlement
and
disbursement thereof is to be dealt with
the penalty of payment of interest. The
Court directed payment of interest @ 9%
on the delayed payment within stipulated
period failing which interest thereon @
18% per annum would need to be paid.

73. Having due regard to the facts
and law, the writ petition is allowed
subject to the following orders:

i.) the respondents are directed
to compute the pension of the exemployee and family pension of the
petitioner strictly, in accordance with the
formula set forth in the Government
Orders made applicable to Government
Servants implementing recommendations
of 6th and 7th Pay Commissions;

ii.)
on
computation/determination as per (i)
above, petitioner shall be entitled to
arrears of pension/family pension as
provided for in the Government Orders;

iii.) petitioner shall be entitled
to interest @ 8% per annum on the
delayed payment of post retiral dues from
the due date;

iv.) arrears of pension/family
pension and the interest payable on the
delayed payment of retiral dues shall be
computed and paid to the petitioner within
two months, from the date of service of
certified copy of the order, failing which,
petitioner shall be entitled to interest @ 12%
on the entire amount from the due date;

v.) the prayer for quashing
Clause (6) of Government Order dated 5
July 2016 is rejected;

74. Cost of litigation assessed at Rs.
50,000/- to be paid to the petitioner by the
third respondent, Allahabad Development
Authority.
----------
(2019)11ILR A275

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.09.2019

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL , J.

Civil Misc.Writ Petition No. 66745 of 2012
Connected with
276 INDIAN LAW REPORTS ALLAHABAD SERIES
WRIT -A No.9223 of 2013
AND
WRIT -A No.9228 of 2013
AND
WRIT -A No.9206 of 2013
AND
WRIT -A No.13433 of 2013

Neeta James ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sri Anurag Ojha, Sri
Ashok Khare.

Counsel for the Respondents:
C.S.C., Sri Anshul Nigam, Sri Rekha
Singh, Sri Shivam Yadav.

A. Service Law - Education Service -
Payment of Salary - U.P. Recognized
Basic School Recruitment (Junior High
School) (Recruitment and Conditions of
Service of Teachers) Rules, 1978: Rule
4(1); U.P. Basic Education Act, 1972;
U.P. Junior High School (Payment of
Salary of Teachers and other employees)
Act, 1978 - Unamended Rule 4(1) of the
Rules, 1978 did not recognize the B.Ed
qualification as a training qualification
for recruitment of teachers in recognized
Junior Basic Schools.

The use of words "such as" in Rule 4(1)
(original Rule, 1978) cannot be said to be
inclusive and is not open for scrutiny before
this Court. Relying upon various precedents
the Court held that prescribed training
qualification under the unamended Rule 4(1)
of the Rules, 1978 did not recognize the B.Ed
qualification as a training qualification for
recruitment of teachers in recognized Junior
Basic Schools. The Amending Rules' of 2008
was not clarificatory and the appointment
made prior to the said amendment would be
governed by the unamended rule. (Para 29)

B. Service Law - Education Service -
Termination
-
Petitioners
had
not
obtained appointment by any fraudulent
method. Therefore, the impugned order
and the consequential orders of the
Manager of the Institution discontinuing
their services w.e.f. 10.11.2012 were
quashed. (Para 34)

Petition partly allowed with directions
not to be treated as precedent (E-4)

Precedent followed: -

1. Sanjay Kumar Tyagi Vs St. of U.P., (2005) 1
ESC 713 (Para 12, 27, 29)

2. Ram Surat Yadav Vs St. of U.P., (2014) 1
ADJ 1 (Para 12, 27, 29)

3. Pramod Kumar (Para 28)

4. Mohd. Sartaj & anr. Vs St. of U.P. & ors.,
(2006) 2 SCC 315 (Para 27, 28)

5. PM Latha & anr. Vs St. of Kerala, (2003) 3
SCC 541 (Para 27, 28)

6. Yogesh Kumar & ors. Vs Govt. of NCT, Delhi
& ors., (2003) 3 SCC 548 (Para 27, 28)

7. Dilip Kumar Ghosh & ors. Vs Chairman,
(2005) 7 SCC 567 (Para 27, 28)

8. Smt. Madhubala Upadhyay Vs St. of U.P.,
decided on 19.01.(2009) (Para 27, 29)

9. Akhilesh Kumar Pandey Vs St. of U.P.,
(2009) 9 ADJ 9 (Para 27, 29)

Precedent referred: -

1. Basic Education Board, U.P. Vs Upendra Rai
& ors., (2008) 3 SCC 432 (Para 24)

2. Shiv Kumar Sharma & ors. Vs St. of U.P. &
ors., (2013) 6 ADJ 310 (Para 25)

3. Irrigineni Venkata Krishna & ors. Vs
Government of A. P. & anr., (2010) 1 ESC 42
(SC) (Para 24)

Precedent cited: -

1. Jitendra Kumar Soni & ors. Vs St. of U.P. &
ors.,
(2010)
7
ADJ
(Para
13)
3 All. Neeta James Vs. State of U.P. & Ors.
277
2. Alka Singh Vs St. of U.P. & 4 ors., Writ
Petition No. 14989 of 2018 (Para 14)

Precedent distinguished: -

1. Rishikant Sharma Vs St. of U.P. & ors.,
(2011) 6 ADJ 1 (Para 28)

Present petition challenges order dated
22.10.2012,
passed
by
Director
of
Education (Basic) U.P., Lucknow.

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J. )

1. Heard Sri Ashok Khare learned
Senior Advocate assisted by Sri Siddharth
Khare learned Advocate for the petitioners
in the leading writ petition, Sri Utpal
Chatterji
learned
Advocate
for
the
petitioners in the connected Writ Petition
Nos. 9223 of 2013 (Smt. Parveen Philip vs.
State of U.P. Thru Principal Secretary &
others) and 9228 of 2013 (Smt. Veena
Menon vs. State of U.P. Thru. Principal
Secretary & others), Sri T.K. Mishra
learned Advocate for the petitioner in the
connected Writ Petition Nos. 13433 of 2013
(Smt. Santosh Singh vs. State of U.P. Thru.
Secy & others), Sri Shivam Yadav learned
Advocate for the District Basic Education
Officer, Meerut and Finance & Accounts
Officer (Basic), office of the District Basic
Education Officer, Meerut and learned
Standing Counsel for the State respondent
nos. 1 and 2.

2. The above noted five connected
petitions have been filed against the
common order dated 22.10.2012 passed
by the Director of Education (Basic) U.P,
Lucknow whereby the representations
moved by the petitioners for payment of
salary from the State Exchequer had been
rejected on the ground that they did not
fulfill
the
minimum
eligibility
qualification as per the U.P Recognized
Basic School Recruitment (Junior High
School) (Recruitment and Conditions of
Services of Teachers) Rules, 1978 (In
short termed as Rules, 1978 hereinafter).

3. The petitioners contend that they
had been appointed as Assistant Teacher
on 1.7.1989 (for petitioners Neeta James,
Ms.Venna Menon and Smt Santosh
Singh) and 11.11.1989 and 25.6.1989 (for
remaining two petitioners Rubina Swami
and Parveen Philip) in Church city Junior
High School, Sadar Meerut. They claim
to
possess
requisite
eligibility
qualification for appointment as Assistant
Teacher in the aforesaid institution which
is a recognized and aided Junior High
School and is governed by the provisions
of the U.P Basic Education Act, 1972 and
the rules framed thereunder. The U.P
Junior High School (Payment of Salary of
Teachers and other employees) Act, 1978
is applicable to the said institution. The
institution-in-question was brought on the
grant-in-aid list with effect from 1988.

4. It is not disputed that the
temporary
appointment
of
all
the
petitioners was approved by the District
Basic Education Officer by orders passed
in the year 1990 and they were working
continuously and getting salary from the
State Exchequer. In the year 2007,
husband of one of the Assistant Teachers
namely Priyadarshini Sharma working in
the same institution filed a Writ Petition
no.21422 of 2007 to challenge the
appointment of 21 Assistant Teachers
including the petitioners herein. The said
writ petition was disposed of by the
judgment and order dated 1.7.2007
wherein this Court had directed the
Director of Education (Basic) to call for
the records from the office of Basic
Education Officer and examine the
278 INDIAN LAW REPORTS ALLAHABAD SERIES
illegality
of
the
appointment
and
payment, if any, made to the teachers and
other staff of the said institution. Pursuant
to the said directions, the Director of
Education (Basic) passed an order dated
2.11.2007 holding 18 Assistant Teachers
being ineligible for appointments in terms
of 1978' Rules and that they were not
entitled to receive salary with the further
directions of making recovery of salary
already paid to them.

5. Aggrieved, the petitioners herein
filed writ petitions separately challenging
the
order
dated
2.11.2007
wherein
initially
interim
order
was
passed
directing for payment of salary in
Untrained-grade to the petitioners. One of
the writ petition was, however, finally
allowed after exchange of pleadings vide
judgment and order dated 1.6.2012.
Similar orders were passed in ten writ
petitions tagged in a bunch. While setting
aside the order passed by the Director of
Education dated 2.11.2007, the matter
was relegated for fresh decision after
giving opportunity of hearing to the
petitioners therein. Consequently, order
impugned dated 22.10.2012 had been
passed.

6. The learned Senior Advocate, Sri
Ashok Khare and Sri Utpal Chatterji
learned Advocate for the petitioners
vehemently
submit
that
there
was
absolutely
no
reason
for
raising
controversy
after
approximately
two
decades of appointment and continuous
working of the petitioners. They submit
that some of the petitioners possessed
B.Ed degree at the time of their
appointment and this was the reason for
holding all of them ineligible in terms of
the Rules, 1978. It is contended that
minimum
qualification
criteria
as
provided in the Original Rule 4 of 1978
Rules was inclusive, in as much as, the
rule reads as under:-

4. Minimum qualification:- (1)
The minimum qualification for the post of
Assistant teacher of a recognised school
shall be Intermediate Examination of the
Board of High School and Intermediate
Education, Uttar Pradesh or equivalent
examination (with Hindi and a teacher's
training course recognised by the State
Government or the Board such as
Hindustani Teaching Certificate, Junior
Teaching Certificate, Basic Teaching
Certificate or Certificate of Training).

(2) The minimum qualifications
for the appointment to the post of
Headmaster of a recognized school shall
be as follows:

(a) A degree from a recognised
University or an equivalent examination
recognized as such;

(b) A teacher's training course
recognised by the State Government or
the Board, such as Hindustani Teaching
Certificate, Junior Teaching Certificate,
Certificate of Training or Basic Teaching
Certificate; and

(c)
Three
years'
teaching
experience in a recognised school.

7. From the language employed in
Rule 4(1) of the original Rule, 1978. It is
contended that words "such as" used
therein gives a clear indication that the
eligibility
training
qualification
prescribed therein was only illustrative
and not exhaustive. It, therefore, could
not be said that if a candidate possessed
B.Ed degree or any other training course
which was recognized by the State
Government or the Board, he or she was
ineligible for appointment. For the first
time, amendment of Rule 4 in 1978 Rules
3 All. Neeta James Vs. State of U.P. & Ors.
279
had been brought by the notification dated
12.6.2008 which came into effect from
12.6.2008 from the date of publication in
the Gazette. Under the amended Rule, the
minimum eligibility training qualification
was made exhaustive with the words "as
follows" by including a regular B.Ed
degree course from a duly recognized
institution, with educational qualification
being graduation degree to replace the
original rule wherein intermediate or
equivalent
examinations
was
the
educational
qualification.
The
submission, thus, is that with the addition
of B.Ed degree as one of the training
qualification in the minimum eligibility
criteria, it could not be said in the year
2012 that the petitioners were ineligible to
continue as Assistant Teachers as B.Ed
was
not
a
recognized
training
qualification.

8. It is further contended that the
entire enquiry had been initiated at the
instance of Sanjay Sharma, husband of
the above referred teacher who herself
was having B.Ed degree, as her wife was
harbouring
vengeance
against
other
teachers. She was shown favour by the
office order dated 22.10.2007 on the plea
that she had rendered long services. The
said order obtained by the petitioners
under Right to Information Act has been
appended as Annexure-'12' to the writ
petition no.13433 of 2013. The attention
of the Court is invited to the contents of
the said order which records the fact that
Smt. Priyadarshini Sharma who was
appointed as Assistant Teacher Church
City, Junior High school, (Meerut) did not
possess eligibility qualification at the time
of appointment. She was appointed in the
year 1999 on the strength of the approval
order of the District Basic Education
Officer wherein her qualification was
shown as Intermediate and B.T.C. In the
year 2005, an enquiry was instituted by
the
State
Government
wherein
she
submitted her B.A and B.Ed certificates,
it was, then, transpired that she had
completed B.Ed course in the year 1993.
She further denied having produced
B.T.C
certificate
as
her
training
qualification
at
the
time
of
her
appointment. It is contended that despite
concealment a lenient view was taken and
though direction was given to her to
deposit salary received from the State
Exchequer but no action was taken
against her. By placing the said order, it is
further vehemently contended by the
learned
Senior
Advocate
for
the
petitioners that the respondents have
acted in a discriminatory manner in
denying salary to the petitioners while
protecting
appointment
of
the
complainant who did not possess requisite
training qualification at the time of
appointment.

9. Sri Utpal Chatterji, learned
Advocate for the petitioners in the
connected petitions submits that the
petitioners to whom he represents were
having training qualification such as
N.T.T, (Nursery teachers' training) and
B.T.C (Basic Training Course) from
another State, ie; outside the State of U.P.
The contention is that the Director of
Education (Basic) while passing the order
impugned had conveniently ignored this
aspect
of
the
matter.
Though
the
individual training qualification of each
of the petitioners has been narrated in the
order impugned but while concluding for
rejection of claim for salary of the
petitioners he simply ignored that they
possessed
B.T.C
or
NTT
training
qualification. With regard to the said
petitioners, the order impugned is simply
280 INDIAN LAW REPORTS ALLAHABAD SERIES
required to be set aside on the ground of
non-application of mind.

10. Learned Standing counsel, on
the other hand, defended the order
impugned on the plea that appointments
of the petitioners were made in the
institution-in-question after it had been
brought on the grant-in-aid list in the
year, 1988. Admittedly, all the provisions
of the Rules, 1978 were applicable at the
time of appointment of the petitioners
wherein B.Ed was not the eligibility
training qualification. Any subsequent
amendment in the rules would be of no
benefit to the petitioners for the settled
legal
position
that
the
eligibility
qualification is to be determined with
reference
to
date
of
appointment.
Illegality in the appointment of petitioners
cannot be regularised as possession of
minimum eligibility qualification both
(educational and training) was a prerequisite to the appointment. The enquiry
into the matter, ie; correctness of
appointment of the petitioners was
conducted pursuant to the orders passed
by this Court and once after the said
enquiry it was found that the petitioners
were ineligible, there was no option
before the respondent but to deny them
salary from the State Exchequer.

11. The counsel for the District
Basic Education Officer relying on the
averments in the counter affidavit filed on
behalf of the said respondents submits
that the petitioners are getting salary of
untrained teacher pursuant to an interim
order dated 13.5.2013 passed in Writ
Petition no.16757 of 2013 though the
answering
respondents
since
the
beginning stressed that they were not
entitled to remain in service and could not
be granted benefit of regular teacher. It is
contended that in view of the requirement
of the Rule, 1978 the petitioners cannot
be paid full salary of the trained teacher.
The amendment application filed by the
petitioners in the connected writ petitions
seeking for the relief for payment of full
salary of trained teacher is, thus, being
repelled.

12. Reference has been made to the
Division Bench judgment of this Court in
Sanjay Kumar Tyagi vs State of U.P
reported in (2005) 1 ESC 713, by the
respondent to submit that B.Ed degree
cannot be considered as a "Teachers
Training Course" for the purpose of
possessing
"minimum
qualification"
under the 1978, Rules. The submission is
that the said view of the Division Bench
has been upheld by the Full Bench of this
Court in Ram Surat Yadav vs State of
U.P reported in (2014) 1 ADJ 1.

13. Sri Utpal Chatterji, learned
counsel for the petitioner in rejoinder
placed reliance on the Full Bench of this
Court in Jitendra Kumar Soni and others
vs State of U.P and others reported in
2010 7 ADJ to submit that the teachers
training course from an Institution outside
the State of U.P cannot be said to be
invalid for appointment of Assistant
Teachers within the State of U.P.

14. Sri Ashok Khare, learned Senior
Advocate
in
rejoinder
placed
the
judgment of a learned Single Judge in
Writ petition no.14989 of 2018 (Alka
Singh vs State of U.P and 4 others) to
submit that the petitioner therein who was
holder of B.Ed degree and was appointed
prior to 2008, was protected taking clue
from the order of the Apex Court in Civil
Appeal no. 3904 of 2013 wherein the
Apex Court has held that the appointment
3 All. Neeta James Vs. State of U.P. & Ors.
281
of the appellants therein ought not be
disturbed only on the ground of alleged
disputed lack of qualification when they
have been in service for a long period.

15. Heard learned counsels for the
parties and perused the record.

16. Before examining the merits of
the arguments of learned counsels for the
parties, it would be apt to go through the
provisions governing appointment of
teachers in a recognized Basic School
with upto-date amendments and also the
legal pronouncements pertaining to the
field. The U.P Basic Education Act, 1972
was enacted for establishment of the
Board of Basic Education and to deal
with the matters connected therein. As per
section (2), the definition Clause, the
"Basic Education" means education up to
the VIIIth Class imparted in schools other
than high schools or intermediate college.
"Junior Basic School" means a Basic
School in which education is imparted up
to Class-V. "Junior High School" means a
basic school in which education is
imparted to boys and girls or to both from
Class-VI
to
Class-VIII.
Section
3
contemplates setting of the Board of
Basic Education. The function of the
Board under Section 4 (1) is to organize,
coordinate and control the imparting of
basic education and teachers' training in
the State in order to raise its standards and
to co-relate it with the system of
education as a whole in the State.

17. In exercise of powers conferred
under section 19 of the Act 1972, to carry
out the purposes of the Act, three sets of
Rules have been framed regulating the
recruitment and conditions of service of
persons appointed to the post of teachers.
The "U.P recognized Basic schools
(Recruitment and Conditions of Service
of Teachers and other Conditions) Rules,
1975"
was
framed
to
govern
the
recognized
Basic
Schools
imparting
education up to Class-V, not being an
institution
belonging
to
or
wholly
maintained by the Board or any local
body. The "U.P recognized Basic Schools
(Junior High Schools) Recruitment and
Conditions of Services of Teachers Rules
1978" was framed to govern the service
conditions of teachers of recognized
Junior High School, ie; an institution
other than a High School or Intermediate
College imparting education from ClassVI to Class-VIII (both inclusive). The
"U.P Basic Education Teachers Service
Rules, 1981" was framed to govern the
service conditions of teachers of the
Junior
Basic
Schools
imparting
instructions in Nursery and Class I to VIII
established by the U.P Board of Basic
Education.
The
academic/eligibility
qualifications for appointment to the post
of Assistant Teacher in a Nursery and
Junior Basic Schools (I to V) established
by the Board as per 1981' Rules are as
follows:-

(i) Mistress of Nursery School

Bachelors degree from a University
established

by
law in India or a degree recognised by the

Government
equivalent thereto together with

certificate of teaching
(Nursery) from recognised

training institution of Uttar
Pradesh and any other

training course recognised by the
Government as

equivalent
thereto
and
teacher
eligibility test

passed
conducted
by
the
Government or by the

Government of India.
282 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) Assistant Master and
(ii)(a)
Bachelors degree from a University

Assistant Mistress of Junior Basic
School established by law in India or a

degree

recognised
by
the
Government
equivalent

thereto

together with any other training
course

recognised by the Government as
equivalent

thereto together with the training
qualification

consisting of a Basic Teacher's
Certificate (BTC),

two years BTC (Urdu) Vishisht
BTC. Two year

Diploma
in
Education
(Special
Education)

approved
by
the
Rehabilitation
Council of India

or
four year degree in Elementary Education

(B.EI.Ed.),
two year Diploma in Elementary

Education
(by
whatever name known) in

accordance
with
the
National Council of Teacher

Education (Recognition, Norms
and Procedure)

Regulations, 2002 or any training
qualifications

to
be
added by National Council for Teacher

Education
for the recruitment of teachers in

primary educationand
teacher eligibility test

passed
conducted
by
the
Government or by the

Government of India and passed
Assistant Teacher

Recruitment Examination conducted
by the Government.

18. In 1981' Rules, a Junior Basic
School has been defined to mean a Basic
School where instructions are imparted
from Class-I to V; whereas a "Senior
Basic School" means a Basic School
where instructions are imparted from
Class-VI to VIII. A ''Nursery school,'' on
the other hand, means a school in which
children ordinarily of the age up to 8
years are taught in the Class lower than
Class-'I'.

19. In so far as Rules, 1975
governing service conditions of teachers
of a recognized Junior Basic School
(Class-I to V) is concerned, Rule 9
thereof provides that for appointment on a
teaching post in any recognized school a
person must possess such qualification as
are specified by Board in this behalf and
previous approval to whose appointment
has been granted by the District Basic
Education Officer in writing.

20. Under Rules, 1978 pertaining to
service conditions of teachers in a
recognized Senior Basic School or Junior
High School, (Class VI to VIII) the
minimum qualification as provided in
Rule 4 of the Original Rule has been
quoted in the foregoing part of this
judgment.

21. Rule 5 of the Original Rules,
1978 further puts a condition that no one
shall be appointed as Assistant Teacher in
substantive capacity in any recognized
school; unless (a) he possess minimum
qualification prescribed for such post; (b)
he is recommended for such appointment
by the Selection Committee.

22. On 3rd September, 2001 the
N.C.T.E (National Council for Teacher
Education), a national expert body set up
3 All. Neeta James Vs. State of U.P. & Ors.
283
by the Central Government under Section
3 of the N.C.T.E Act, 1993 notified "The
National Council for Teacher Education
(Determinations
of
minimum
qualifications for recruitment of teachers
in schools) Regulations, 2001" in exercise
of power conferred under clause d(i) of
sub-section (2) of Section 32 read with
section 12 (d) of "The National Council
for Teacher Education, Act 1993".
Regulation 2 of the Regulations' 2001
provides that the same shall be applicable
for recruitment of teachers in all formal
schools established, run or aided or
recognized by the Central or State
Governments and other authorities for
imparting
education
at
elementary
(primary
and
upper
primary/middle
school), secondary and senior secondary
stages. Regulation 3(i) provides that the
qualifications for recruitment of teachers
in educational institutions mentioned in
Regulation 2 shall be as prescribed in the
First Schedule for teaching schools
subjects. Regulation 4 provides that the
existing
recruitment
Rules
may
be
modified within a period of three years so
as to bring them in conformity with the
qualifications prescribed in the Schedules
therein. Meanwhile, teachers appointed in
accordance with the existing recruitment
qualifications, subsequent to the issuance
of the Regulations, would be required to
acquire the qualifications as prescribed in
the Schedules. As per the First Schedule
to the Regulations, 2001, a teacher for
Primary Classes must possess educational
qualification up to Intermediate level with
the teachers training qualification of
Diploma or Certificate in basic teachers'
training of a duration of not less than two
years
or
Bachelor
of
Elementary
Education. Whereas, a teacher in the
Upper Primary (Middle school section)
may possess an alternative qualification
of a degree of Bachelor in Education
(B.Ed) or its equivalent. The note
appended to the First Schedule reads as
follows:-

Level
Minimum
Academic
And
Professional
Qualifications

I
Elementary
a. Primary

 b.
Upper
Primary
(Middle
School
section)

(i)
Senior
Secondary
School
certificate
or
Intermediate
or
its
equivalent; and
(ii) Diploma or certificate
in basic teachers' training
of a duration of not less
than two years.
OR
Bachelor of Elementary
Education (B.El.Ed)

i.Senior
Secondary
School
certificate
or
Intermediate or its
equivalent; and
ii.Diploma or certificate
in elementary teachers
training of a duration of
not less than two years.
OR
Bachelor of Elementary
Education (B.El.Ed)
OR
Graduate with Bachelor
of Education (B.Ed) or its
equivalent.

II
Secondary/
High School
II Secondary/High School
Graduate with Bachelor
of Education (B.Ed.) or
its equivalent

OR
Four
years'
integrated
B.Sc.,
B.Ed
or
an
284 INDIAN LAW REPORTS ALLAHABAD SERIES
equivalent course.

III Senior
Secondary/
PUC/Inter
mediate
Master's Degree in the
relevant
subject
with
Bachelor of Education
(B.Ed) or its equivalent.

OR
Two
years'
integrated
M.Sc.Ed. Course or an
equivalent course.

Note:

1. For appointment of teachers
for primary classes, basic teachers'
training programme of 2 years' duration
is required. B.Ed is not a substitute for
basic teachers' training."

23. Thus, B.Ed was included as
permissible qualification for appointment
of teachers to the Upper Primary (Middle
school section) w.e.f 3.9.2001 under the
N.C.T.E Regulations' 2001. The said
regulations, however, contemplated that
there were existing recruitment rules
enforced in various States of the country
and, therefore, provided under Rule 4 that
the existing recruitment rules may be
modified within a period of three years so
as to bring them in conformity with the
qualifications prescribed in the Schedules.

24. The effect of the said enactment
was considered by the Apex Court in
Basic Education Board, U.P vs Upendra
Rai and others and (2008) 3 SCC 432.
The Supreme Court held that the N.C.T.E
Act
does
not
deal
with
ordinary
educational qualifications like primary
schools,
High
Schools,
Intermediate
Colleges or universities and would,
consequently, not override the U.P Basic
Education Act and the Rules made
thereunder. It was held that the N.C.T.E
Act and U.P Basic Education Act operate
in two different fields, first with regard to
teachers training institute and the second
with regard to ordinary Primary Schools
in the State of U.P, the concept of
primacy under Article 254 of the
Constitution, as such, has no application.
The correctness of the judgment in
Upendra Rai was referred to the larger
bench by the Supreme Court in Irrigineni
Venkata
Krishna
and
others
vs.
Government of Andhra Pradesh and
another reported in (2010) 1 ESC 42
(SC) . During pendency of the said
reference,
Parliament
enacted
the
National Council for Teaching Education
(Amendment) Act, 2011 (Act no.18 of
2011), w.e.f 01.06.2012. The Amending
Act introduced Sub-section (4) in Section
1 to provide that the Act shall apply, inter
alia, to schools imparting pre primary,
primary, upper primary, secondary or
senior secondary institutions and colleges
providing
Senior
Secondary
or
Intermediate education. Section 12-A was
also inserted which provides as follows:-

"12 A. For the purpose of
maintaining standards of education in
schools, the Council may, by regulations,
determine the qualifications of persons
for being recruited as teachers in any
pre-primary, primary, upper primary,
secondary,
senior
secondary
or
intermediate
school
or
college,
by
whatever name called, established, run,
aided or recog

25. The Amending Act 2011, thus,
came into force with prospective effect.
The validity of the provisions of the
N.C.T.E Act and the amendment Act
have been upheld by Full Bench of this
Court in Shiv Kumar Sharma and others
3 All. Neeta James Vs. State of U.P. & Ors.
285
vs State of U.P and others reported in
2013 (6) ADJ 310 wherein it is held that
the N.C.T.E is fully empowered to
prescribe qualifications for the persons to
be recruited as teachers from pre-primary
to the Intermediate school or college
level.

26. The Rule 4 of 1978' Rules has
been substituted w.e.f 12.6.2008 and subRule (1) of Rule 4, thereafter, reads as
follows;

"4.Minimum
qualification:-
(1) The minimum qualification for the
post of Assistant teacher of a recognized
school shall be Graduation Degree from
a University recognized by U.G.C and a
teachers training course recognized by
the State Government or U.G.C or the
Board as follows:-

1.Basic Teaching Certificate.

2.A regular B.Ed degree from a
duly recognized Institution.

3.Certificate of Teaching

4.Junior Teaching Certificate

5.Hindustani
Teaching
Certificate

Rule
4
has
further
been
substituted
by
notification
dated
5.12.2012 (w.e.f 5.12.2012). The amended
sub-Rule 1 as it now stands reads as
follows:-

"4.Minimum
qualification:-
(1) The minimum qualifications for the
post of Assistant teacher of a recognized
school shall be Graduation Degree from
a University recognized by U.G.C and a
teachers training course recognized by
the State Government or U.G.C or the
Board as follows:-

1.Basic Teaching Certificate.

2.A regular B.Ed degree from a
duly recognized Institution.

3.Certificate of Teaching.

4.Junior Teaching Certificate

5.Hindustani
Teaching
Certificate

And

Teacher eligibility test passed
conducted by the Government of Uttar
Pradesh or by the Government of India.

27. The question with regard to the
eligibility qualification for recruitment of
teachers in a Junior High School prior to
the enactment of the NCTE Amending
Act 18 of 2011 and the Right of Children
to Free and Compulsory Education, Act'
2009 came up for consideration before a
Full Bench of this Court in Ram Surat
Yadav and others vs State of U.P and
others reported in (2014) 1 ADJ 1, in
view of the conflicting decisions of the
Division Benches of this Court. After
considering
the
minimum
eligibility
qualification provided in Rules' 1978 and
the decisions of the Apex court in Mohd
Sartaj and another vs State of U.P and
others reported in (2006) 2 SCC 315, it
was held therein that once the Rules
which have been framed under the Statute
prescribes the eligibility qualifications,
those qualifications have to be adhered
and a candidate who does not fulfill the
required qualification has no entitlement
to hold the post even if such an
appointment is made, it would be contrary
to law. It was held that the plea that B.Ed
Course can be taken as a superior course
to the B.T.C had been expressly turned
down in the judgments of the Supreme
court in PM Latha and another vs State
of Kerala reported in 2003 3 SCC 541,
Yogesh Kumar and others vs Govt. of
NCT, Delhi and others reported in 2003
3 SCC 548, Dilip kumar Ghosh and
others vs Chairman reported in 2005 7
SCC 567. The decisions of the Division
286 INDIAN LAW REPORTS ALLAHABAD SERIES
Benches in Sanjay Kumar Tyagi vs State
of U.P and others reported in 2005 1
ESC 713 and in Smt Madhubala
Upadhyay vs State of U.P decided on
19th January, 2009 and Akhilesh Kumar
Pandey vs State of U.P reported in
(2009) 9 ADJ 9 had been held to be good
law wherein the effect of subsequent
amendment of Rules' 1978 in 2008 was
considered and it was held that the
Amending rules of 2008 would not apply
to a situation where an appointment was
made under the unamended rule. It was
held that the Amendment of 2008 was not
clarificatory. The B.Ed degree was not a
prescribed training qualification under the
original Rule 4(1) of the Rules' 1978.

28.

In
this
background,
the
judgment of the Division Bench in
Rishikant Sharma vs State of U.P and
others reported in 2011 (6) ADJ 1
wherein it was held that since the
question whether the B.Ed Degree course
can be taken as a superior course to B.T.C
was a long standing dispute and it was
later included as eligibility qualification
in the year 2008, the teachers appointed
prior to amended qualification would be
treated as eligible, was held as not laying
down the correct principle of law. The
said decision was overruled by the Full
Bench;
firstly,
on
the
fundamental
principle that when requirement of
eligibility is prescribed in the Statutory
Rules
which
govern
selection,
appointment of a person who does not
fulfill the norms of eligibility cannot be
regarded as lawful; Secondly, that when a
selection process is initiated in pursuance
of an advertisement which lays down the
conditions of eligibility, a person who
does not fulfill the required qualifications
can have no legitimate entitlement to hold
the post; Thirdly, that the view taken by
the Division Bench in RishiKant Sharma
(supra) was contrary to the law laid down
by the Apex Court in the line of authority
as noted in PM Latha, Yogesh Kumar,
Dilip Kumar Ghosh and Pramod Kumar
(supra); Fourthly, on the ground that the
decision in Mohd Sartaj (supra) had been
distinguished on erroneous grounds.

29. In this backdrop, the question
whether the B.Ed degree can be regarded as
eligibility qualification for appointment to
the post of Assistant Teachers in a
recognized Junior High School under the
Rules 1978, is no longer res integra. The
contentions of the learned Advocates for the
petitioners that the essential qualification
prescribed in unamended original Rule 4(1)
of 1978' Rules is inclusive for the use the
words "such as" therein is not open for
scrutiny before this Court. With the decisions
of the Division Benches in Sanjay Kumar
Tyagi
(supra),
Smt
Madhubala
and
Akhilesh Chandra Pandey (supra), held to
be good law in Ram Surat Yadav (full
bench), it is settled that the prescribed
training qualification under the unamended
Rule 4(1) of the Rules' 1978 did not
recognize the B.Ed qualification as a training
qualification for recruitment of teachers in a
recognized Junior Basic Schools. The
Amending
Rules'
of
2008
was
not
clarificatory and the appointment made prior
to the said amendment would be governed
by the unamended rule.

30. It, therefore, cannot be said that
the persons who possess B.Ed degree as
training qualification were eligible for
appointment to the post of Assistant
Teacher in a recognized Junior High
School.

31. In the present bunch, the
petitioner namely Ms. Neeta James had
3 All. Neeta James Vs. State of U.P. & Ors.
287
completed Bachelor of Education (B.Ed)
course in the year 1991-92 and was
appointed in the year 1989. The objection
taken by the respondent with regard to
identity of the said petitioner in the order
impugned for difference in her name in
the
educational
certificates
is
not
sustainable as it is clear from the record
that she was daughter of Sri S.G.Beechan.
But it is held that having completed B.Ed
training course that too after appointment,
she was not entitled for appointment to
the post of Assistant Teacher to teach in
Junior and Senior Basic School ie Class-I
to VIII, however, having been qualified
N.T.T
(Nursery
Teachers'
Training)
course she could have been appointed to
teach children at the Elementary or
Nursery level only. Further having
noticed the fact that the said petitioner
was appointed in the year 1989 and had
continued to work as Assistant Teacher
uninterruptedly till the year 2007 when
dispute regarding her qualification was
raised on a petition filed by husband of a
fellow teacher, and also that the said
petitioner is working and must have been
at the verge of retirement, this Court finds
it proper to let her continue as an
untrained teacher in the institution-inquestion. It is also noteworthy that by the
order impugned, the approval granted by
the District Basic Education Officer in the
year 1990 to the appointment of said
petitioner has not been cancelled or
revoked. There is no whisper of any
misrepresentation or concealment on the
part of the said petitioner. It would,
therefore,
be
appropriate
that
the
petitioner namely Ms. Neeta James be
allowed to continue as an untrained
Assistant Teacher in the School namely
Church City, Junior High School, Meerut
till she attains the age of superannuation.
At the same time, the management of the
Institution shall be liable to pay salary to
the said petitioner for the entire period of
her working in the institution-in-question,
regularly, month by month and shall not
in any way interfere in the working of the
petitioner on the premise that her
appointment on the post of Assistant
Teacher in Junior High School was
invalid. It would be open for the
Management to take work of Nursery
Teacher from her.

32. Similar is the position with
regard to another petitioner Ms.Rubina
Swami who has appended her educational
and training certificates as Annexure-'1' to
the writ petition filed by her.