# Rakesh Kumar v. State of U.P. & Ors. 588 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 1 ILRA 587
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-05
- **Case number:** Special Appeal No. 441 of 2021
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-v-state-of-u-p-ors-588-indian-law-reports-allahabad-series-51377
- **Pages:** 7

## Headnote

A. Service Law - Assistant Teacher in
primary
school
-
Appointment
-
Qualification
-
Petitioner
possessed
training qualification of B.P.Ed., not of
B.Ed. - Entitlement - Held, order passed
by the District Inspector of Schools,
wherein it has been observed that the
B.P.Ed., degree is not recognized for
Primary Schools, is perfect. Consequently,
no
interference
is
required
in
the
impugned order passed by the learned
Single Judge wherein it has been observed
that
the
petitioner
lacks
essential
qualification as prescribed under the
Statute for appointment as Assistant
teacher in the attached school of the
Institution inasmuch as B.P.Ed. Degree is
not an alternate qualification prescribed
for B.T.C. etc., he cannot claim to be
qualified. (Para 24)

Special Appeal dismissed. (E-1)

List of cases cited:

## Text

1 All. Rakesh Kumar Vs. State of U.P. & Ors.
587
features which were noticed by the trial Court
and then give its own independent reason.
The lower appellate Court has failed to
discharge its duties as a final Court of fact.
The appellate Court has shirked its duties
and has not discussed the evidence brought
on record. On several occasions the appellate
Court has only criticised the efforts made by
the trial Court in issuing various commission
in order to identify the land. The appellate
Court instead of giving a finding of various
issues framed by the trial Court has allowed
the appeal on the ground that the plaintiff
had failed to establish that the disputed land
belonged to him. This finding given by the
appellate Court, in my opinion, is based on
no reason or evidence. The appellate Court
has omitted to take stock of the entire
material and failed to take a cumulative view
from the material evidence on record."

24. From perusal of the judgement of
this Court in the case of Ved Ram (supra) it
emerges that this Court has held the
provisions of Order 41 Rule 31 Code of Civil
Procedure to be mandatory and that the first
appellate
court
while
delivering
the
judgement is required to set out the points for
determination, record the decision thereon
and give its own reason for the said decision.

25. This Court has further held that
failure to comply with these provisions
would not be a mere irregularity but would
render the judgement nugatory.

26. Accordingly, when the impugned
judgement of learned Tribunal is seen in the
context of the law laid down by this Court
in the case of Ved Ram (supra) vis a vis
the provisions of Section 57(8) and Section
57(5) of the Act, 2008 read with Rule 63(5)
of the Rules, 2008 it clearly emerges that
learned Tribunal has patently erred in
neither noting the points for determination
nor giving the reason for such decision
thereon. Even though certain reasons are
indicated in the impugned judgement, as
emerge from a perusal of the said
judgement, yet without determining the
points for determination and the reasons for
such decision thereon, it cannot be said that
the judgement of learned Tribunal complies
with the provisions of Rule 63(5) of the
Rules, 2008.

27. Keeping in view the aforesaid
discussion, the revision is allowed. The order
impugned dated 19.03.2008, a copy of which
is annexure 1 to the revision, is set aside so far
as it pertains to Second Appeal No. 68 of 2017
in re: Sarvshri Sarvshri Rajansh Marble
House vs Commissioner of Commercial
Tax, Lucknow.

28. The matter is remitted to learned
Commercial Tax Tribunal, Lucknow, U.P.
to pass a fresh decision in accordance with
law complying with the provisions of
Section 57 of the Act, 2008 and Rule 63 of
the Rules, 2008.

29. Let such an order be passed in
accordance with law within a period of
three months from the date of receipt of
certified copy of this order.
----------
(2024) 1 ILRA 587
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.01.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal No. 441 of 2021

Rakesh Kumar ...Appellant
Versus
State of U.P. & Ors. ...Respondents
588 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Yogendra Kumar Mishra, Ajey Mishra

Counsel for the Respondents:
C.S.C.

A. Service Law - Assistant Teacher in
primary
school
-
Appointment
-
Qualification
-
Petitioner
possessed
training qualification of B.P.Ed., not of
B.Ed. - Entitlement - Held, order passed
by the District Inspector of Schools,
wherein it has been observed that the
B.P.Ed., degree is not recognized for
Primary Schools, is perfect. Consequently,
no
interference
is
required
in
the
impugned order passed by the learned
Single Judge wherein it has been observed
that
the
petitioner
lacks
essential
qualification as prescribed under the
Statute for appointment as Assistant
teacher in the attached school of the
Institution inasmuch as B.P.Ed. Degree is
not an alternate qualification prescribed
for B.T.C. etc., he cannot claim to be
qualified. (Para 24)

Special Appeal dismissed. (E-1)

List of cases cited:

1. Special Appeal No. 1247 of 2012; Amal
Kishore Singh Vs St. of U.P. & ors. decided on
10.10.2018

(Delivered by Hon'ble Attau Rahman
Masoodi, J.
 &
Hon'ble Om Prakash Shukla, J.)

(1) Heard Sri Yogendra Kumar
Mishra, learned Counsel for the appellant
and Sri Anil Kumar Singh Visen, learned
Standing Counsel for the State-respondents.

(2) The instant Special Appeal has
been filed under Chapter VIII Rule 5 of
Allahabad
High
Court
Rules,
1952
assailing the order dated 04.10.2021 passed
in Writ Petition No. 1301 (SS) of 2017,
Rakesh Kumar v. State of U.P. and others,
whereby the writ petition filed by the
appellant-petitioner has been dismissed on
the
ground
that
since
the
appellant/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., he cannot claim to be qualified.

(3) Facts necessary for disposal of the
appeal, which lies in narrow compass, need
mention infra to appreciate the controversy
involved in the appeal.

(4) Swami Vivekanand Inter College,
Gonda (here-in-after referred to as 'the
institution' for the sake of brevity) is a
recognized
and
Government
aided
institution
imparting
education
upto
Intermediate classes. The institution is
governed
under
the
provisions
of
Intermediate Education Act, 1921 and Uttar
Pradesh High Schools and Intermediate
Colleges
(Payment
and
Selection
of
Teachers and other Employees) Act, 1971.

(5) On 17.03.2010, the Committee of
Management got published advertisements
for appointment of Assistant Teachers in
the daily newspapers 'Swatantra Bharat'
and 'Trigut'. Subsequently, the Committee
of Management appointed Rakesh Kumar
(appellant/petitioner), Shailendra Kumar
Singh and Ms. Poonam Devi and the
relevant papers were sent by the Manager
of the Committee of Management to the
District Inspector of Schools for approval
on 16.04.2010. However, the District
Inspector of Schools vide his order dated
05.05.2010 disapproved the selection and
appointments made on three posts of
Assistant Teachers in the Primary Section
1 All. Rakesh Kumar Vs. State of U.P. & Ors.
589
of the Institution by the Committee of
Management.

(6) Aggrieved by the order of District
Inspector of Schools dated 05.05.2010
disapproving the selection of three persons
including
the
appellant/petitioner,
Writ
Petition No. 2981 (SS) of 2010, Km. Poonam
Devi and others v. State of U.P. and others
was filed before this Court. While disposing
of the writ petition vide order dated
09.08.2010, the District Inspector of Schools,
Gonda was directed to send the matter
alongwith complete record to the State
Government for its approval and liberty was
granted to the State Government to examine
the matter independently and take a decision
either way for requisitioning the Committee
of Management. The decision so taken within
two months was directed to be communicated
to the Committee of Management.

(7)
 Assailing
the
order
dated
09.08.2010, Km. Poonam Devi and others
filed Special Appeal No. 607 of 2010
before a Division Bench of this Court
which was disposed of vide order dated
17.04.2012 modifying the order dated
09.08.2010 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 state 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 a seeking a fresh
sanction.

(8) Thereafter, the District Inspector
of School passed an order dated 17.07.2012
for payment of salary to the aforesaid three
persons with the stipulation that if any
adverse
material
pertaining
to
the
appointment of these three persons would
come to his notice, the order would be
cancelled. To this effect, appointment
authority and the concerned teacher would
be responsible. When the three Teachers
submitted their testimonials for making
entries in the service books, it was found
that the date of entry of Km. Poonam Devi
was different, to which she was unable to
give proper and satisfactory explanation.
As stated above, relying on the order dated
17.07.2012, the Manager stopped the
payment of salary to Km. Poonam Devi
vide order dated 13.07.2013. When she
preferred a representation before the
District Inspector of Schools, he has
ordered for conducting the inquiry into the
selection
and
appointment
of
the
appellant/petitioner and two others. For this
purpose, the District Inspector of Schools
appointed Principal, F.A.A. Government
Inter College, Gonda vide his order dated
12.09.2013 who, in turn, has submitted his
inquiry report on 12.11.2013 stating therein
that the appellant/petitioner and other two
persons were selected only on the basis of
the marks secured in the interview and
despite the persons having B.Ed. Degree
available, two persons holding B.P.Ed.,
degree
were
selected.
In
these
circumstances, it was held by the Inquiry
Officer that stoppage of payment of salary
to the appellant/petitioner and other persons
would not be proper.

(9) Considering the report of the
Inquiry Officer, the District Inspector of
Schools had withheld the salary of the
aforesaid three Teachers vide order dated
29.11.2013. Out of them, one Teacher
Shailendra Kumar Singh had submitted a
representation for reconsidering the matter,
on which the then Finance and Accounts
590 INDIAN LAW REPORTS ALLAHABAD SERIES
Officer (Secondary Education), Gonda had
directed to re-consider the matter vide his
order dated 28.06.2014. Before completion
of the proceedings, he was transferred. In
the meantime, vide order dated 27.06.2014,
the Committee of Management had decided
to terminate the aforesaid three Teachers
and forwarded the papers to the office of
District Inspector of Schools. After giving
an audience to all three Teachers, the
District Inspector of Schools approved the
decision taken by the Committee of
Management
vide
his
order
dated
27.09.2014 and thereafter, the services of
all three teachers were terminated vide
order dated 20.10.2014 by the Committee
of Management.

(10) Assailing the order passed by the
District
Inspector
of
Schools
dated
27.09.2014, whereby the District Inspector
of Schools had approved the decision taken
by
the
Committee
of
Management
terminating the services of three Teachers,
the appellant-petitioner filed Writ Petition
No. 6517 (SS) of 2014 on the ground of
passing sketchy order passed by the District
Inspector of Schools, wherein the Writ
Court vide order dated 14.09.2016, while
remanding the matter to the District
Inspector of Schools for passing a fresh
order, after giving an audience to the
appellant-petitioner,
allowed
the
writ
petition filed by the appellant-petitioner
with a direction that the appellant-petitioner
shall continue on the post of Assistant
Teacher and till a decision is taken by the
District Inspector of Schools, the appellantpetitioner is entitled for salary as and when
it would fall due.

(11) Pursuant to the order passed by
the Writ Court, the appellant-petitioner
preferred a representation dated 28.10.2016
annexing therewith a copy of order dated
14.09.2016 passed by the Writ Court. The
District Inspector of Schools after hearing
the appellant-petitioner, representative of
the
Committee
of
Management
and
Principal of the Institution, passed the
impugned order dated 27.12.2016 rejecting
the
representation
of
the
appellant/petitioner with the stipulation that
the appellant possesses the degree of
B.P.Ed., which is not recognized.

(12) In the aforesaid backdrop, the
appellant-petitioner has filed Writ Petition
No. 1301 (SS) of 2017 which was
dismissed vide impugned judgment and
order dated 04.10.2021 on the grounds
enumerated in para - 2 of the order.

(13) The contention of the learned
Counsel for the appellant-petitioner is that
the
qualification
prescribed
for
the
Assistant Teacher is 'trained graduate' as
mentioned in the advertisement dated
17.03.2010. Since the appellant- petitioner
is B.P.Ed., the order passed by the District
Inspector
of
Schools
rejecting
the
representation of the appellant-petitioner is
patently illegal.

(14) He next contended that the
training qualification B.P.Ed., is equivalent
to B.Ed., L.T./C.T. and therefore, he ought
not to have been terminated by the
authorities concerned and in support of this
contention, he has relied upon the Full
Bench judgment of this Court dated
10.10.2018 rendered in Special Appeal No.
1247 of 2012, Amal Kishore Singh vs.
State of U.P. and others.

(15) His further submission is that the
learned
Single
Judge
has
also
not
considered aforesaid facts and dismissed
the
petition
filed
by
the
appellantpetitioner. Hence, the Special Appeal filed
1 All. Rakesh Kumar Vs. State of U.P. & Ors.
591
by the appellant-petitioner is liable to be
allowed and the impugned order is liable to
be set aside.

(16) On the other hand, learned
Standing
Counsel
appearing
for
the
opposite parties submits that the essential
qualification required for the Assistant
Teachers in Primary School is graduation
with
C.T./B.T.C./H.T.C.
or
equivalent
qualification and if the candidates having
the aforesaid qualification are not available,
persons with B.Ed., degree would be
appointed. Since the qualification acquired
by the appellant-petitioner is B.P.Ed., and it
is not a recognized qualification for
appointment to the post of Assistant
Teacher
in
the
Primary
Section
of
Intermediate Colleges, the order passed by
the learned Single Judge whereby the writ
petition filed by the appellant-petitioner has
been dismissed is perfectly legal and no
need to interfere in the impugned order.

(17) Considered the submissions
made by the learned Counsel for the parties
and perused the record available on record
with the Special Appeal.

(18) Admittedly, pursuant to the
advertisements
for
appointment
of
Assistant Teachers in the daily newspapers
'Swatantra Bharat' and 'Trigut' dated
17.03.2010, Rakesh Kumar (appellant/
petitioner), Shailendra Kumar Singh and
Ms. Poonam Devi had applied and selected
for the post of Assistant Teacher. The
qualification
mentioned
in
the
advertisement
is
'trained
graduate'
(Annexure No.19) and the appellant being a
trained graduate applied for the post of
Assistant Teacher in Primary School having
the
qualification
of
graduation
with
B.P.Ed., training and after considering the
qualification of B.P.Ed. training, the
appellant
had
been
appointed
on
13.04.2010
(Annexure
No.20).
On
conclusion of selection proceedings, the
papers were sent to the District Inspector of
Schools on 16.04.2010 for approval, who in
turn has refused to grant the approval. The
disapproval of the District Inspector of
Schools dated 05.05.2010 was assailed
before Writ Court in Writ Petition No. 2981
(SS) of 2010 which was disposed of vide
order dated 09.08.2010

(19) Thereafter, when the aforesaid
order was assailed in Special Appeal No.
607 of 2010, the order passed by the Writ
Court
was
modified
with
certain
stipulations. Truly it is stated that the orders
passed by the Writ Court as also passed by
the superior Court were complied with.
However, when the salary to Km. Poonam
Devi vide order dated 13.07.2013 was
stopped, she preferred a representation
before the District Inspector of Schools,
who in turn has ordered for conducting the
inquiry into the selection and appointment
of the appellant/petitioner and two others.

(20) In the inquiry report submitted
by the Inquiry Officer, it is revealed that
though
the
candidates
acquiring
the
qualification of B.Ed., are available, yet
two
persons
who
are
having
the
qualification
of
B.P.Ed.,
have
been
recommended for appointment on the post
of Assistant Teacher in the Primary School.

(21) Since much emphasis has been
laid by the appellant-petitioner that the
B.P.Ed., qualification is equivalent to
B.Ed., and in support of this, he has relied
upon paragraphs 45, 46 and 47 of judgment
of Full Bench in Amal Kishore Singh
(supra), it is necessary to have a look into
the
aforesaid
paragraphs
which
are
reproduced hereunder for ready reference:-
592 INDIAN LAW REPORTS ALLAHABAD SERIES

"45. We now proceed to examine
the stand of the State Government in
respect of the controversy in hand. In this
regard we would allude to an affidavit filed
by
Principal
Secretary,
Secondary
Education, U.P. Lucknow dated 18th May,
2017 wherein the State Government has
also accepted the position that B.P.Ed.
qualification is equivalent to other teaching
qualifications enumerated in Paragraph 2
of Appendix-A and it reads thus:-

"8. That in Appendix in reference
of
Regulation-1
Chapter-II
of
U.P.
Intermediate Education Act, does not refer
specifically the B.P.Ed. Course. After the
Regulation 2001 came into force. It has
been adopted by the State as equivalent to
'trained' for which a necessary amendment
is required to be incorporated I the
Schedule. As a principal, the B.P.Ed.
Degree is treated to be equivalent to a
'trained' as referred in para-2 of AppendixA.

9. That in view of the above, the
B.P.Ed. Course is equivalent to that of
B.Ed., L.T., B.T./C.T. It is further clarified
that the necessary amendment is to be
incorporated in the schedule."

46. In view of the foregoing
discussion and having regard to the stand
of the State Government on the issue, we
are unable to subscribe to the view taken by
Division Bench in Vindhyachal Yadav that
B.P.Ed. could not be equated with other
teaching qualifications prescribed under
Appendix-A of Regulation 1 of Chapter-II
of the regulations framed under the U.P.
Intermediate Education Act, 1921 and
accordingly, we overrule the same as well
as all other judgements of this Court taking
a contrary view.

47. We, thus, answer question (i)
in affirmative and question (iii) by holding
that Vindhyachal Yadav does not lay down
the correct law. However, question (ii) has
to be answered, subject to certain riders. A
B.P.Ed. degree being a post graduate
training qualification, would entitle a
person to hold post of Headmaster of a
recognised High School but not that of
Principal of an Intermediate college. The
reason is that under Regulations, 2001 as
well as under Minimum Qualification
Regulations, 2014 framed by NCTE,
B.P.Ed.
is
recognised
as
eligibility
qualification for teaching Classes IX - X
(Secondary/ High School) but not for
Classes XI - XII (Senior Secondary/
Intermediate). For teaching Intermediate
classes, the person should possess M.P.Ed.
degree of at least two years duration from
any
National
Council
for
Teacher
Education recognised institution. These
regulations do not prescribe any separate
qualification for Head of institution and
thus the qualification prescribed for a
teacher of Intermediate classes (SeniorSecondary) would also apply to Head of
such an institution. We have already held
above that the qualifications prescribed by
NCTE would be binding on the State,
therefore, the qualifications prescribed by
Minimum Qualification Regulations, 2014
have to be read alongwith Appendix-A and
thus, a teacher possessing B.P.Ed. degree,
would not be eligible to hold post of
Principal of an Intermediate College."

(22) A perusal of the aforesaid
paragraphs
indicates
that
a
teacher
possessing B.P.Ed., degree is eligible to be
appointed as Headmaster of a High School,
but not as Principal of an Intermediate
College.

(23) Admittedly, the appellantpetitioner is having the qualification of
B.P.Ed., and has applied for Assistant
Teacher in Primary School and as per
verdict of the Full Bench of this Court, as
1 All. Shimla Devi Vs. State of U.P. & Ors.
593
mentioned above, it is not applicable in the
case of the appellant-petitioner.

(24) Relying upon the judgment of
Full Bench of Amal Kishore Singh
(supra), the order passed by the District
Inspector of Schools, wherein it has been
observed that the B.P.Ed., degree is not
recognized for Primary Schools, is perfect.
Consequently, no interference is required in
the impugned order passed by the learned
Single Judge wherein it has been observed
that
the
petitioner
lacks
essential
qualification as prescribed under the Statute
for appointment as Assistant teacher in the
attached school of the Institution inasmuch
as B.P.Ed. Degree is not an alternate
qualification prescribed for B.T.C. etc., he
cannot claim to be qualified.

(25) For all the reasons stated above,
the Special Appeal, being bereft of any
merit, is dismissed.

(26) There shall be no order as to
costs.
----------
(2024) 1 ILRA 593
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2021

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE PIYUSH AGRAWAL, J.

Special Appeal Defective No. 647 of 2021

Shimla Devi ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Lal Chandra Srivastava

Counsel for the Respondents:
Sri Ankit Gaur (State Law Officer)
A. Service law - Constitution of India -
Article 226 - Writ
- Limitation
-
Maintainability - Direction to decide 5
years
belated
appeal
filed
against
dismissal order sought for - Charge of
unauthorized absence of over 678 days -
Writ court was approached after 25
years - Submission of representation,
how far alive the stale claim - Shiv
Charan Singh Bhandari's case relied
upon - Held, even if there is no period
prescribed for filing the writ petition
under Article 226, yet it should be filed
within a reasonable time - The doctrine
of delay and laches should not be lightly
brushed aside. A writ court is required to
weigh the explanation offered and the
acceptability of the same - The court
should bear in mind that it is exercising
an
extraordinary
and
equitable
jurisdiction. As a constitutional court it
has a duty to protect the rights of the
citizens but simultaneously it is to keep
itself alive to the primary principle that
when an aggrieved person, without
adequate reason, approaches the court
at his own leisure or pleasure, the court
would be under legal obligation to
scrutinize whether the lis at a belated
stage should be entertained or not -
Even if the court or tribunal directs for
consideration of representations relating
to a stale claim or dead grievance it does
not give rise to a fresh cause of action.
(Para 6 and 8)

Special Appeal dismissed. (E-1)

List of cases cited:

1. St. of Uttaranchal & anr. Vs Sri Shiv
Charan Singh Bhandari & ors.; 2013 (6) SLR
629

2. U.O.I.& ors. Vs Chaman Rana; 2018(5) SCC
798

3. U.O.I.& ors. Vs C. Girija & ors.; 2019 (3)
SCALE 527

4. Chennai Metropolitan Water Supply and
Sewerage Board & ors. Vs T. T. Murali Babu;
2014 (4) SCC 108