# Rakesh Kumar v. State of U.P. & Ors

- **Citation:** (2021) 10 ILRA 680
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-04
- **Case number:** Service Single No. 1301 of 2017
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-v-state-of-u-p-ors-46400
- **Pages:** 7

## Headnote

A. Service Law - Appointment - Essential
qualification
-
U.P.
Intermediate
Education Act, 1921 - Section 16(2), 16-G
-
Uttar
Pradesh
High
Schools
and
Intermediate
Colleges
(Payment
and
Selection
of
Teachers
and
other
Employees) Act, 1971 - Uttar Pradesh
Recognized Basic Schools (Junior High
Schools) Recruitment and Conditions of
Service of Teachers) Rules, 1978 - Rule 4.

The question, which arises for consideration, is
whether the petitioner having qualification of
B.A. and B.P.Ed. was eligible to be appointed on
the post of Assistant Teacher in the attached
primary
section
of
the
institution.
The
qualification of Assistant Teacher in attached
primary section of an Intermediate College is
graduation plus C.T., B.T.C./H.T.C. or equivalent
qualification, but in case of non-availability of
person with BTC qualification, person with B.Ed.
degree qualification would be appointed. (Para
15)

Section 16-G of the Act, 1921 - It is evident
that in absence of a candidate having essential
qualification
of
graduation
plus
C.T.,
B.T.C./H.T.C. or equivalent qualification, the
candidate with B.Ed. degree would be eligible
for
appointment.
B.P.Ed.
degree
is
not
mentioned as one of the alternate qualifications.
This Court cannot substitute the statutory
qualification,
which is
not
otherwise
provided under the relevant provisions,
which prescribe the essential qualification
for appointment to the post of Assistant
Teacher in the attached primary school.
(Para 17, 18, 19)

Teacher's Training imparted to teachers for
B.Ed. course equips them for teaching higher
classes, whereas the Basic Teaching Certificate
(BTC) is given to teachers for teaching small
children and the two cannot be compared with.
The duration of courses of B.T.C. and L.T./B.Ed.
are entirely different and have been devised
keeping in view the stages through which the
students pass. (Para 20)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

680 INDIAN LAW REPORTS ALLAHABAD SERIES

(22)

The
special
appeal
is,
accordingly, dismissed.
----------
(2021)10ILR A680
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.10.2021

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J

Service Single No. 1301 of 2017

Rakesh Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondent

Counsel for the Petitioners:
Yogendra Kumar Mishra, K.B. Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law - Appointment - Essential
qualification
-
U.P.
Intermediate
Education Act, 1921 - Section 16(2), 16-G
-
Uttar
Pradesh
High
Schools
and
Intermediate
Colleges
(Payment
and
Selection
of
Teachers
and
other
Employees) Act, 1971 - Uttar Pradesh
Recognized Basic Schools (Junior High
Schools) Recruitment and Conditions of
Service of Teachers) Rules, 1978 - Rule 4.

The question, which arises for consideration, is
whether the petitioner having qualification of
B.A. and B.P.Ed. was eligible to be appointed on
the post of Assistant Teacher in the attached
primary
section
of
the
institution.
The
qualification of Assistant Teacher in attached
primary section of an Intermediate College is
graduation plus C.T., B.T.C./H.T.C. or equivalent
qualification, but in case of non-availability of
person with BTC qualification, person with B.Ed.
degree qualification would be appointed. (Para
15)

Section 16-G of the Act, 1921 - It is evident
that in absence of a candidate having essential
qualification
of
graduation
plus
C.T.,
B.T.C./H.T.C. or equivalent qualification, the
candidate with B.Ed. degree would be eligible
for
appointment.
B.P.Ed.
degree
is
not
mentioned as one of the alternate qualifications.
This Court cannot substitute the statutory
qualification,
which is
not
otherwise
provided under the relevant provisions,
which prescribe the essential qualification
for appointment to the post of Assistant
Teacher in the attached primary school.
(Para 17, 18, 19)

Teacher's Training imparted to teachers for
B.Ed. course equips them for teaching higher
classes, whereas the Basic Teaching Certificate
(BTC) is given to teachers for teaching small
children and the two cannot be compared with.
The duration of courses of B.T.C. and L.T./B.Ed.
are entirely different and have been devised
keeping in view the stages through which the
students pass. (Para 20)

Writ petition dismissed. (E-4)

Precedent followed:

1. Ram Surat Yadav & ors. Vs St. of U.P. & ors.,
2013 CJ (All) 2205 (Para 19)

Precedent distinguished:

1. Amal Kishore Singh Vs State of U.P. & ors.,
Special Appeal No. 1247 of 2013, decided on
10.10.2018 (Para 12, 21)

Present
petition
assails
order
dated
27.12.2016, passed by District Inspector
of Schools, Gonda.

(Delivered by Hon'ble Dinesh
Kumar Singh, J.)

1. The present writ petition under
Article 226 of the Constitution of India has
been filed for quashing of the order dated
27.12.2016 passed by the District Inspector
of Schools, Gonda upholding the order
dated 20.10.2014 passed by the committee
of management terminating the services of
the petitioner on the ground that the
10 All. Rakesh Kumar Vs. State of U.P. & Ors.
681
petitioner does not possess the requisite
qualification for appointment as Teacher in
the
attached
primary
school of
the
Vivekanand Inter College, Gonda, whereas
under sub-section (2) of Section 16 of the
Intermediate Education Act, 1921 (for short
?Act, 1921?), the requisite qualification for
a Teacher of attached primary school is
graduation plus C.T./B.T.C./H.T.C. or
equivalent qualification and in the event of
non-availability of B.T.C. trained person,
person with B.Ed. degree qualification is
eligible for appointment.

2. Swami Vivekanand Inter College,
Gonda (hereinafter referred to as ?the
institution?) is recognised and Government
aided institution, which imparts education
upto Intermediate classes. It imparts
education from Class-I to Class-XII. It is
governed under the provisions of the Act,
1921 as well as Uttar Pradesh High Schools
and Intermediate Colleges (Payment and
Selection
of
Teachers
and
other
Employees) Act, 1971 (for short ?Act,
1971?).

3. In the primary section, nine posts
of Assistant Teachers are sanctioned. In the
year 2003, an amendment was brought in
by inserting Regulation 7(2)(a) under
Regulation 7, Chapter-II of the Regulations
framed under the Act, 1921 providing for
promotion of Assistant Teachers of the
attached primary section to the post of
Assistant Teachers in LT Grade and, it was
provided that 25% posts of Assistant
Teachers of LT Grade would be filled up
by promotion of Assistant Teachers of
primary schools, who are having five years
service to their credit and having requisite
qualification for appointment as LT Grade
Teacher. Three Teachers of the attached
primary school of the institution, namely,
Raj Mani Tripathi, Smt. Rama Devi Shukla
and Dr. Dinesh Kumar Shukla were
promoted to the post of Assistant Teacher
in LT Grade under 25% promotional quota.

4. The committee of management of
the
institution
vide
its
letter
dated
1.10.2008 sought sanction from the District
Inspector of Schools to fill up three posts of
Assistant Teachers in the primary section.
The District Inspector of Schools vide letter
dated 7.11.2008 informed the institution
that the State Government vide order dated
25.9.2008 had imposed ban on the
appointments
of
the
Teachers.
Subsequently, the said ban was lifted by the
State Government. The committee of
management, thereafter, advertised three
posts and appointed Rakesh Kumar, the
present petitioner, Shailendra Kumar Singh
and Ms. Poonam Devi and sent the papers
to the District Inspector of Schools, Gonda
vide letter dated 16.4.2010 for approval.
The District Inspector of Schools vide his
order dated 5.5.2010 disapproved the
selection and appointments made by the
committee
of
management
of
three
aforesaid persons to the post of Assistant
Teacher in the primary section of the
institution.

5. Against the said order, Writ
Petition No.2981 (SS) of 2010, Km.
Poonam Devi and others Vs. State of U.P.
and others, was filed before this Court. The
aforesaid writ petition was disposed of vide
order dated 9.8.2010 as under:-

"Heard
Sri
H.G.S.Parihar,
learned counsel for the petitioner, Sri
Rakesh Kumar Chaudhary for the opposite
party no.5-Committee of Management and
Sri Manjeev Shukla, learned Standing
counsel for the State.

The petitioner is aggrieved by the
order of the District Inspector of Schools
682 INDIAN LAW REPORTS ALLAHABAD SERIES
(DIOS) dated 5.5.2010. By this order the
DIOS has cancelled the appointment made
by the committee of management without
prior approval of the State Government.
The petitioner says that there were
vacancies. The committee of management
duly informed the DIOS and asked for his
permission. The DIOS made some queries
which were answered by the committee of
management
and
the
committee
of
management
proceeded
to
make
the
appointment
after
making
necessary
advertisement in the news papers as
required by law.

Learned Standing counsel says
that prior approval is required under the
Government Order dated 19th April, 2003
and the committee of management without
waiting for the prior approval of the State
Government has made the appointment
which are against the spirit of the
provisions of government order. Hence, the
cancellation order passed by the DIOS is
valid.

Sri H.G.S. Parihar, on the other
hand, has stated that under the regulation
7-A, Chapter II, there is no need for the
prior approval of the State Government
and the Government Order can not
override the provisions of the regulations.
He has also drawn the attention of this
Court towards the judgment of this Court in
2009 (3) ESC 2108 (ALLD) wherein it was
decided that since all formalities had
already been completed and only prior
approval was not given by the State
Government it is necessary that such
procedure should start once again.

In view of rival submissions, the
Court comes to the conclusion that prior
approval, if not granted, has to be given by
the State Government. Accordingly, the
DIOS, Gonda is directed to sent the matter
along with complete record to the State
Government for its approval. The State
Government shall be at liberty to examine
the matter independently and take a
decision
either
way
regarding
the
requisition
of
the
committee
of
management. The decision shall be taken
within two months from the date a certified
copy of this order is placed before him and
the
decision
so
taken
shall
be
communicated
to
the
committee
of
management.

With these observations and
directions the petition is disposed of
finally."

6. Against the said order dated
9.8.2010, Special Appeal No.607 of 2010,
Km. Poonam Devi and others Vs. State of
U.P and others, was filed before a Division
Bench of this Court. The Division Bench of
this Court vide order dated 17.4.2012
disposed of the said special appeal
modifying the order dated 9.8.2010 passed
by the learned Single Judge to the extent
that the primary section concerned should
not
make
appointment
beyond
the
sanctioned strength available and, further
that
once
sanction
in
respect
of
appointment has already been granted at
any stage in respect of vacancy, against the
said vacancy no fresh sanction would be
required to fill up the post. In case the
appellants have been appointed against
sanctioned posts, it would be inappropriate
on the part of the authority to insist upon
seeking a fresh sanction. With the aforesaid
modification, the special appeal stood
disposed of.

7. The District Inspector of Schools
thereafter, vide order dated 17.7.2012
passed the order for payment of salary to
three persons, namely, Rakesh Kumar, the
present petitioner, Shailendra Kumar Singh
and Km. Poonam Devi with the condition
that in case some relevant facts/adverse
10 All. Rakesh Kumar Vs. State of U.P. & Ors.
683
material would come to the notice in future
in relation to appointment of the said
persons, the order for payment of salary
would be cancelled and for such action,
appointing authority and the concerned
Teacher would be responsible. The said
three Teachers thereafter, submitted their
testimonials for making entries in their
service books. The date of birth of Km.
Poonam Devi was found to be different
than in the mark-sheets. Km. Poonam Devi
could not give proper and satisfactory
explanation in this regard to the Manager
and, therefore, the Manager vide order
dated 13.7.2013 stopped the payment of
salary of Km. Poonam Devi. Km. Poonam
Devi made a representation against the
order dated 13.7.2013 passed by the
Manager before the District Inspector of
Schools and, the District Inspector of
Schools vide his order dated 12.9.2013
appointed Principal, F.A.A. Government
Inter College, Gonda as enquiry officer for
conducting the enquiry in the selection and
appointment of the petitioner and two
others. The enquiry officer submitted his
enquiry report on 12.11.2013, in which it
was said that Rakesh Kumar, the present
petitioner, Shailendra Kumar Singh and
Ms. Poonam Devi were selected only on
the basis of the marks secured in the
interview instead of the total marks of
educational qualifications and interview
and despite there having candidates with
B.Ed. degree available, two candidates with
B.P.Ed.
degree
were
selected
and,
therefore, the payment of salary to these
Teachers would not be proper in the
interest of the students or the State.

8. In view of the aforesaid report of the
enquiry officer, salary of the aforesaid three
Teachers was withheld vide order dated
29.11.2013. Shailendra Kumar Singh again
submitted representation for re-consideration
of the matter. The then Finance and Accounts
Officer (Secondary Education), Gonda vide
order dated 28.6.2014 had directed to reconsider the matter, but due to his transfer,
the same could not get completed. The
committee of management vide order dated
27.6.2014 had decided to terminate the
services of three Teachers and forwarded the
papers to the office of the District Inspector
of Schools for approval. The District
Inspector of Schools gave opportunity to
these three Teachers for representing their
case and fixed 26.9.2014 for hearing. All the
three Teachers remained present and made
submissions in support of their case. The
District Inspector of Schools approved the
decision of the committee of management
dated 27.6.2014 vide order dated 27.9.2014
and in pursuance thereof, services of the
petitioner were terminated by the committee
of management vide order dated 20.10.2014.

9. The petitioner challenged the said
orders by filing Writ Petition No.6517 (SS)
of 2014 before this Court. The aforesaid writ
petition was allowed vide judgement and
order dated 14.9.2016 on the ground that the
order dated 27.9.2014 passed by the District
Inspector of Schools did not contain any
reason. The matter was remitted back to the
District Inspector of Schools to pass a fresh
order after giving opportunity of hearing to
the
petitioner
and
the
committee
of
management, preferably, within a period of
four months from the date of the order. It was
further
directed
that
petitioner
should
continue as Assistant Teacher in the
institution and his salary should be paid as
and when it would fall due till the fresh
decision is taken by the District Inspector of
Schools.

10. In compliance of the aforesaid
order, the petitioner made representation
dated 28.10.2016 annexing the order dated
684 INDIAN LAW REPORTS ALLAHABAD SERIES
14.9.2016 passed by this Court. The
District
Inspector
of
Schools
fixed
18.11.2016, the date for hearing. However,
on the said date, Manager of the institution
was not present and, therefore, next date
was fixed as 25.11.2016, on which date the
petitioner as well as the representative of
the
committee
of
management,
i.e.
Principal of the institution, were present.
After hearing the petitioner as well as the
committee of management, the impugned
order dated 27.12.2016 was passed by the
District Inspector of Schools.

11. Learned counsel for the petitioner
submits that training qualification B.P.Ed.
is equivalent qualification to B.Ed., L.T.,
B.T./C.T. and B.P.Ed. is covered by phrase
?equivalent qualification? as provided
under sub-section (2) of Section 16 of the
Act, 1921. He, therefore, submits that the
ground, on which the petitioner?s services
were terminated that he did not possess the
requisite qualification for appointment to
the post of Assistant Teacher in the
attached
primary
school,
is
wholly
incorrect and is liable to be set aside.

12. Learned counsel for the petitioner
in support of his contention has placed
reliance upon a Full Bench judgement and
order of this Court rendered in Special
Appeal No.1247 of 2013, Amal Kishore
Singh Vs. State of U.P. and others,
decided on 10.10.2018.

13. On the other hand, learned
counsel for the opposite parties submit that
as per the provisions of sub-section (2) of
Section 16 of the Act, 1921, the Assistant
Teacher in the primary section, where the
Teachers are receiving the salary under the
provisions of the Act, 1971 are to be
appointed through direct recruitment. The
essential qualification for the Assistant
Teacher
in
such
primary
school
is
graduation with C.T., B.T.C./H.T.C. or
equivalent qualification, but in case of nonavailability
of
person
with
BTC
qualification, person with B.Ed. degree
qualification would be appointed. The
qualification of B.P.Ed. is not a recognised
qualification for appointment to the post of
Assistant Teacher in the primary section of
Intermediate
Colleges.
It
is
further
submitted that B.P.Ed. is a training for
imparting physical education, which is
being imparted at the High School and
Intermediate
level.
However,
in
the
institution in question, no post of Physical
Education Teacher is created at primary
level.

14. I have considered the submissions
advanced on behalf of the learned counsel
for the petitioner as well as by the learned
counsel for the opposite parties.

15. The question, which arises for
consideration, is whether the petitioner
having qualification of B.A. and B.P.Ed.
was eligible to be appointed on the post of
Assistant Teacher in the attached primary
section of the institution. The qualification
of Assistant Teacher in attached primary
section of an Intermediate College is
graduation plus C.T., B.T.C./H.T.C. or
equivalent qualification, but in case of nonavailability
of
person
with
BTC
qualification, person with B.Ed. degree
qualification would be appointed.

16. Section 16-G of the Act, 1921
stipulates that every person employed in a
recognized institution shall be governed by
such conditions of service as may be
prescribed by Regulations. Section 15 of
the Act, 1921 empowers the Board to make
Regulations for the purpose of carrying into
effect the provisions of the Act. In exercise
10 All. Rakesh Kumar Vs. State of U.P. & Ors.
685
of the said power, the Board has framed
Regulations and under Chapter-II thereof,
provisions relating to appointment of heads
of institutions and Teachers have been laid
down. Regulation-I provides the minimum
qualifications for appointment of head of
the institution and teachers in a recognized
institution. In Appendix-A, the minimum
qualifications
for
appointment
of
an
Assistant Teacher in the attached primary
school are provided. It is provided that
posts of Assistant Teachers in the attached
primary school, who are governed under
the provisions of the Act, 1971, shall be
filled up by direct recruitment with
qualification
of
graduation
plus
C.T./B.T.C./H.T.C.
or
equivalent
qualification and in case of non-availability
of B.T.C. trained candidate, person with
B.Ed. degree can be appointed.

17. From perusal of the aforesaid
provision, it is evident that in absence of a
candidate having essential qualification of
graduation plus C.T., B.T.C./H.T.C. or
equivalent qualification, the candidate with
B.Ed. degree would be eligible for
appointment.
B.P.Ed.
degree
is
not
mentioned
as
one
of
the
alternate
qualifications. This Court can not substitute
the statutory qualification, which is not
otherwise provided under the relevant
provisions, which prescribe the essential
qualification for appointment to the post of
Assistant Teacher in the attached primary
school.

18. In primary section, the children
study in Class-I to Class-V and, therefore,
the Teachers require such training to teach
students of these classes. The Legislature in
its wisdom, has prescribed the qualification
for appointment of Assistant Teacher in the
attached primary school, which does not
include B.P.Ed. degree. It is also prescribed
that only in absence of B.T.C. candidates,
candidates with B.Ed. degree would be
considered for appointment.

19. A Full Bench of this Court in the
case of Ram Surat Yadav and others Vs.
State of U.P and others, 2013 CJ (All)
2205, while interpreting Rule 4 of the Uttar
Pradesh Recognised Basic Schools (Junior
High
Schools)
(Recruitment
and
Conditions of Service of Teachers) Rules,
1978 has rejected the argument that B.Ed.
qualification is a higher qualification than
TTC and, therefore, the B.Ed. candidates
should be held to be eligible to compete for
the post of Assistant Teacher. Paragraph 10
of the aforesaid judgement is extracted
herein-below:-

"10. Consequently, the judgment
of the Supreme Court holds that (i) the BEd
qualification cannot be regarded as a
'higher qualification' than a prescribed
certificate of training for primary school
children; (ii) whether for a particular post,
the source of recruitment should be from
candidates with a particular degree is a
matter of recruitment policy; and (iii)
whether the BEd qualification can also be
prescribed for primary school teachers is a
question to be considered by the recruiting
authority."

20. It has been further held that
Teacher's Training imparted to teachers for
B.Ed. course equips them for teaching
higher classes, whereas the Basic Teaching
Certificate (BTC) is given to teachers for
teaching small children and the two cannot
be compared with. The duration of courses
of B.T.C. and L.T./B.Ed. are entirely
different and have been devised keeping in
view the stages through which the students
pass. In the case of B.T.C., the method of
Training Course is devised so as to meet
686 INDIAN LAW REPORTS ALLAHABAD SERIES
the requirement of teaching at a formative
stage for a student who enters the School.
Thus, it has been held that the training
qualification for teaching small children is
B.T.C. while the training qualification for
teaching children in High Schools and
Intermediate Colleges is B.Ed. or L.T.

21. The judgement cited by the
learned counsel for the petitioner in the
case of Amal Kishore Singh (supra) was in
respect of the Head Master of the
institution and not in respect of the
Assistant Teacher in the attached primary
school. Therefore, the said judgement is not
relevant in the facts of the present case.
Since,
the
petitioner
lacks
essential
qualification as prescribed under the statute
for appointment as Assistant Teacher in the
attached primary school of the institution
inasmuch as B.P.Ed. degree is not an
alternate qualification prescribed for B.T.C.
etc., he can not claim to be qualified and,
therefore, I do not find any error in the
impugned order dated 27.12.2016 passed
by the District Inspector of Schools, Gonda
upholding the order dated 20.10.2014
passed by the committee of management
terminating the services of the petitioner.

22. In view thereof, the writ petition
fails and is hereby dismissed.
----------
(2021)10ILR A686
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.10.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 5636 of 2012

Umesh Kumar Sinha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajay Bhanot, Sri Kartiyeka Saran, Sri
Shashank Shekhar Mishra, Sri Vinayak
Ranjan, Sri Shiv Kumar Singh

Counsel for the Respondents:
C.S.C., Sri K.S. Kushwaha, Sri Nisheeth
Yadav

A. Service Law - Disciplinary Enquiry - It
is the right of the employer to conduct
disciplinary action against its employee
and the Courts are usually reluctant to
interfere with such rights but it must be
observed that such right is not absolute.
Where the employer is the State it is expected
to act a model employer and due care and
caution is expected to be exercised by the
relevant authority while dealing with conduct of
disciplinary
action
against
its
employees.
Merely because the employer is the State
it would not mean that the government
servant can be placed under suspension
for an indefinite period even without
initiating disciplinary action, as is the case
in hand. (Para 16)

There is absolutely no reason disclosed in any of
the affidavit as to on what basis the charges
were levelled against the petitioner when the
original records itself were neither traced nor
were
ever
placed
before
the
competent
authority who formed the opinion or sanctioned
the issuance of charge-sheet to the petitioner.
(Para 15)

B. The initiation of disciplinary action was
highly belated and no justification or
material was brought on record to explain
such inordinate delay. (Para 18)

Initiation of enquiry after such long lapse of
time not only causes extreme prejudice to the
employee but otherwise goes contrary to the
interest of administration as also larger public
interest inasmuch as the Government servant
under the threat of such proceedings or their
victimization would not be willing to perform
even just duties unless such arbitrary action is