# Sarita Shukla and others v. State of U.P. and others

- **Citation:** (2011) 3 ILRA 1497
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-12-12
- **Case number:** Civil Misc. Writ Petition No. 70682 of 2011
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sarita-shukla-and-others-v-state-of-u-p-and-others-42090
- **Pages:** 13

## Headnote

Rules, 1981-Rule 14 (1)-Selection of
training teachers for primary school-by
clause 7 of advertisement-restriction to
apply
only
5
districts-held-arbitrary
irrational, violative of Article 14-can not
sustain.

Held: Para 38

It is also not discernible as to whether
any rational object the respondents
intent
to
achieve
by
making
this
restriction. The said condition also fails
ex facie to show any nexus with the
undisclosed objectives sought to be
achieved. It is well settled that any
policy
decision,
which
is
ex
facie
arbitrary,
irrational
or
illogical
is
violative
of
Article
14
and
cannot
sustain.
Case law discussed:
(2006) 9 SCC 1; 2010 (5) ESC 630; AIR 1992
SC 1858
1498 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

## Text

3 All] Sarita Shukla and others V. State of U.P. and others
1497
action, the Assistant Collector may take
action, after receipt of such complaints
even made by the general public. We are,
therefore, of the view that the Assistant
Collector cannot wash out his hands from
discharging his duties given under the Act
for removal of such encroachments which
are alleged to have been made over the
Gaon Sabha property. For that purpose,
we would like to observe that even if the
complaint is made before the Collector
and not Assistant Collector, as required
under the Act, the Collector is also under
an obligation to send the complaints to the
Assistant Collector of the concerned area
from where the complaint has been
received and on such receipt of complaint,
either transmitted through the office of the
District Collector or directly by the
general public, the Assistant Collector is
under
legal
obligation
under
the
provisions of the Act and the Rules
framed thereunder, to make an enquiry in
this regard, and after being satisfied, issue
notice to the encroacher along with full
details as required under the Rules and
proceed in accordance with the provisions
contained under Section 122-B of the Act
of 1950 and the Rules framed thereunder.

14. In view of above legal position,
we are of the view that the appropriate
remedy for the petitioner herein is to file a
comprehensive application/representation
giving all details before the Assistant
Collector concerned with regard to such
encroachment as alleged herein and on
receipt of such complaint, the Assistant
Collector is directed to proceed in
accordance with the provisions of the Act
of 1950 and the Rules framed thereunder,
and after making necessary enquiry and
affording opportunity of hearing to all
concerned, take appropriate decision
expeditiously.

15. Subject to above observations,
this writ petition is disposed of finally.
There shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.12.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 70682 of 2011

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

Counsel for the Petitioner:
Sri Agnihotri Kumar Tripathi

Counsel for the Respondents:
C.S.C.
Sri K.S.Kushwaha
Sri Chandra Narayan Tripathi

U.P. Basic Education (Teachers) Service
Rules, 1981-Rule 14 (1)-Selection of
training teachers for primary school-by
clause 7 of advertisement-restriction to
apply
only
5
districts-held-arbitrary
irrational, violative of Article 14-can not
sustain.

Held: Para 38

It is also not discernible as to whether
any rational object the respondents
intent
to
achieve
by
making
this
restriction. The said condition also fails
ex facie to show any nexus with the
undisclosed objectives sought to be
achieved. It is well settled that any
policy
decision,
which
is
ex
facie
arbitrary,
irrational
or
illogical
is
violative
of
Article
14
and
cannot
sustain.
Case law discussed:
(2006) 9 SCC 1; 2010 (5) ESC 630; AIR 1992
SC 1858
1498 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
(Delivered by Hon'ble Sudhir Agarwal,J. )

1. Heard Sri Agnihotri Kumar
Tripathi for the petitioner and Sri
K.S.Kushwaha,
learned
Standing
Counsel for all the respondents.

2. Since a pure legal submission
was advanced, learned Standing Counsel
stated that he does not propose to file
counter affidavit and matter may be
heard on merit. I proceed to decide the
matter accordingly.

3.

The
learned
counsel
for
petitioner submitted that advertisement
in question to the extent it provides that a
candidate should restrict his application
for only five districts in U.P. in his/her
choice is illegal and ultra vires of the
statute.

4. The facts in brief are quite
simple. An advertisement has been
issued
on
29/30.11.2011
with
the
heading "Selection of Training-Teachers
for Primary Schools of U.P. Basic
Education
Board".
While
inviting
application from eligible and qualified
candidates, it provides that one candidate
may submit his application for any of the
five districts and not more than that. The
advertisement contains other details of
educational and training qualification,
age,
nationality
and
residence,
reservation, marital status, character,
procedure
for
submission
of
the
application
form,
application
fee,
procedure for selection, six months
special training and then clause 10 of the
advertisement
talks
of
substantive
appointment.

5.

Learned
counsel
for
the
petitioners
contended
that
aforesaid
advertisement in so far as restricts a
candidate to submit application only in
five districts is per se irrational, illegal
and arbitrary, hence violative of Articles
14 and 19 of the Constitution. He
contended that there is no logic or reason
for confining a candidate to submit
application only in five districts and the
aforesaid restriction is wholly irrational,
has no nexus with the object sought to
the achieved and, therefore, is violative
of Article 14. He further submitted that it
also does not conform with the procedure
prescribed in Rule 14(1) of U.P. Basic
Education (Teachers) Service Rules,
1981 (hereinafter referred to as "Rules
1981") which talks of district-wise
selection and therefore Clause 7 of
advertisement as also opening para that
one applicant can apply for only five
districts is ultra vires of the aforesaid
provision of the statute. He lastly
submitted that for the purpose of
providing six months special training, it
is always open to the respondents to
adopt any valid procedure but if for the
purpose
of
appointment
the
said
advertisement is to be acted upon, it
would be illegal and ultra vires being
contrary
to
the
relevant
statutory
provisions namely 'Rules, 1981.

6. Sri Kushwaha on the contrary
submitted that the advertisement has
been issued in the light of and
consequence to Regulations framed by
"National
Council
for
Teachers
Education
Regulations"
notified
in
Government of India Gazette dated
29.7.2011. It is said that no further
advertisement is to be made for making
appointment on the post of Assistant
Teacher
in
the
Primary
Schools
maintained by Board and in fact the
persons
selected
pursuant
to
the
3 All] Sarita Shukla and others V. State of U.P. and others
1499
impugned advertisement shall be given
six months training and on completion
thereof
shall
be
issued
letters
of
appointment straightway without any
further process of recruitment.

7. In the above backdrop, this Court
proceed to examine correctness of
advertisement to the extent, impugned in
this petition.

8. Before proceeding further it is
necessary to clarify some aspect of the
matter. One is regarding minimum
qualification of teachers and quality of
teacher's training constituting essential
eligibility for a person before claiming
appointment on the post of Assistant
Teacher in Primary School; and second,
relates to actual process of recruitment
and appointment under relevant statutory
rules relating to the service concerned.

9. There are three statutes relevant
in this matter. One is "Uttar Pradesh
Basic Education Act, 1972" (hereinafter
referred to as "Act 1972"), Second is
"National
Council
For
Teacher
Education
Act,
1993"
(hereinafter
referred to "Act 1993") and third is
"Right
of
Children
to
Free
and
Compulsory
Education
Act,
2009"
(hereinafter referred to as "Act 2009").

10. Prior to the enactment of Act
1972, primary education in the State was
in quite disorganized manner. There
were two types of Primary Schools
running in the entire State. One owned
and managed by local bodies and rests
were private institutions. In the rural
areas, primary schools of first category
were being managed by Zila Parishads
and in urban areas they were being run
by Municipal Boards and Mahapalikas
etc. The funds to these schools were the
responsibility of concerned local bodies.
Privately managed Primary Schools were
also having two types of categories, one
which were solely managed by private
bodies from their own resources and rest
were those which were getting some kind
of financial grant/assistance from State
Government
through
Education
Department or some other Departments
like Harijan and Social Welfare etc.

11. Article 41 in Part IV (Directive
Principles of State Policy) provides that
the State shall, within the limits of its
economic capacity and development,
make effective provision for securing
right to work, to education etc. but as a
matter of fact effective steps in this
regard were wanting. Similarly Article
45 provides that State shall endeavour to
provide, within a period of ten years
from the commencement of Constitution,
free and compulsory education for all
children until they complete the age of
fourteen years but as a matter of fact here
also much remain to be done on the part
of the State. In early seventies, to bring
uniformity in Primary schools run by
Local Bodies, considering day to day
deteriorating conditions of such schools,
a
public
demand
through
their
representatives was raised requiring State
to take immediate steps for improving
primary education in the State and hence
with an objective of reorganisation,
reformation and expanding elementary
education,
State
Government
came
forward to take over control of such
schools, as were being run by Local
Bodies into its own hands. It enacted
U.P. Basic Education Ordinance 1972
giving effect to its provisions w.e.f.
Educational Session 1972-73. The said
ordinance was substituted by Act 1972. It
1500 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
provided for establishment of U.P. Board
of Basic Education (in short the 'Board')
and by virtue of Section 9, all the
employees
of
Primary
Schools
maintained
by
local
bodies
stood
transferred and became employee of the
Board. Section 19 confers power upon
the State Government to frame rules for
the purpose of carrying out Act 1972 in
general and in particular the recruitment
and conditions of service of the persons
appointed to the post of officers, teachers
and employees under Section 6 and 9 and
also in respect to such staff teaching and
non teaching of other basic schools
recognized by the Board. The provisions
of Act 1972 was given overriding effect
over
otherwise
provisions
in
U.P.
Panchayat
Raj
Act,
1947,
U.P.
Municipalities Act, 1916 and U.P.
Municipal Corporation Act, 1952 by
inserting Section 13A w.e.f. 21st June,
1979.

12. All the basic schools virtually
in the State of U.P., now, if recognized
by the Board, have to conform to the
provisions of Act 1972 and the rules
framed thereunder.

13. In respect to teachers of
Primary Schools maintained by the
Board, Rules 1981 have been framed,
published
in
U.P.
Gazette
(Extra
Ordinary)
on
03.01.1981.
The
application of these rules is provided in
Rule 3, as under:

"Extent of application.- These rules
shall apply to :

(i) All teachers of local bodies
transferred to the Board under Section 9
of the Act; and

(ii) all teachers employed for the
Basic and Nursery Schools established
by the Board."

14. At this stage, I defer further
discussion of the aforesaid Rules and
find it appropriate to come to the
provisions of Act 1993. This is a Central
Act enacted by Parliament and after
receiving assent of the President on
29.12.1993 was published in the Gazette
of India, (Extra.) Part II, Section 1, dated
30.12.1993. Section 1(3) provides that
Act 1993 shall come into force on such
date as the Central Government may
appoint by notification in initial gazette.
Pursuant thereto the Central Government
by
notification
dated
1.07.1995
appointed the same day i.e. 01.7.1995 for
enforcement of Act 1993.

15. The Act 1993 was enacted with
an objective of achieving planned and
coordinated development for teacher
education system throughout the country,
the regulation and properly maintenance
of norms and standards in teacher
education
system
and
for
matters
connected therewith.

16. In State of Maharashtra Vs.
Sant Dnyaneshwar Shikshan Shastra
Mahavidyalaya and others (2006) 9
SCC 1, Apex Court observed that
considering the objective and preamble
of the Act and various provisions, it is
clear that the aforesaid Act of Parliament
is referable to Entry 66 of List I of
Schedule VII of the Constitution and to
the extent the field is occupied by Act
1993
the
State
Legislature
cannot
encroach upon the said field.

17. The Act 1993 contemplates
establishment of a council called as
3 All] Sarita Shukla and others V. State of U.P. and others
1501
"National
Council
For
Teacher
Education"
(hereinafter
referred
as
"NCTE")
and
its
functions
are
enumerated in detail in Section 12 of Act
1993. It clearly talks of planned and coordinated
development
of
teacher
education,
and
determination
and
maintenance of standards for teacher
education. It is in this regard various
subjects and functions of NCTE have
been enumerated in Section 12 from
Clauses (a) to (n) which reads as under:

"(a) undertake surveys and studies
relating to various aspects of teacher
education and publish the result thereof;

(b) make recommendations to the
Central
and
State
Governments,
Universities,
University
Grants
Commission and recognised Institutions
in the matter of preparation of suitable
plans and programmes in the field of
teacher education:

(c) co-ordinate and monitor teacher
education and its development in the
country;

(d) lay down guidelines in respect of
minimum qualifications for a person to
be employed as a teacher in schools or in
recognised institutions.;

(e) lay down norms for any specified
category of courses or training in
teacher
education,
including
the
minimum
eligibility
criteria
for
admission thereof, and the method of
selection of candidates, duration of the
course, course contents and mode of
curriculum;

(f)
lay
down
guidelines
for
compliance by recognised institution for
starting new courses or training, and for
providing physical and instructional
facilities, staffing pattern and staff
qualifications;

(g) lay down standards in respect of
examinations
leading
to
teacher
education qualifications, criteria for
admission to such examinations and
schemes of courses or training;

(h) lay down guidelines regarding
tuition fee and other fee chargeable by
recognised institutions;

(i) promote and conduct innovation
and research in various areas of teacher
education and disseminate the results
thereof;

(j) examine and review periodically
the
implementation
of
the
norms,
guidelines and standards laid down by
the Council, and to suitably advise the
recognised institutions;

(k) evolve suitable performance
appraisal
systems,
norms
and
mechanisms for enforcing accountability
on recognised institutions;

(l) formulated schemes for various
levels of teacher education and identify
recognised institutions and set up new
institutions for teacher development
programmes;

(m) take all necessary steps to
prevent commercialisation of teacher
education; and

(n) perform such other functions as
may be entrusted to it by the Central
Government."
1502 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

18. The Act 1993 contemplates
recognition and permission of NCTE for
running courses or training in teacher
education. Section 17 provides, if course
or training in teacher education has been
imparted or obtained in violation of the
provisions of the Act, such course or
training shall not be treated a valid
qualification
for
the
purpose
of
employment under Central Act, State
Government,
University,
any
School/College or other educational
body aided by Central or the State
Government. The restriction imposed by
Section 17(4) is only to the extent that a
training or course in teacher education
which does not conform to the various
provisions of Act 1993 shall not be a
valid qualification for employment as
stated above, and nothing more and
nothing less. The entire Act 1993 does
not talk of the manner in which
appointments of teachers shall be made,
the eligibility to be laid down for
appointment of teachers in Primary
Schools etc. except qualification. It is
confined to the standard and quality of
teachers education. In this regard NCTE
obviously can lay down minimum
qualification which may be prescribed
for appointment of a teacher but it does
not control thereafter the mode, manner
and other relevant provisions regarding
recruitment and appointment of such
teachers.

19. In State of U.P. and Others
Vs. Bhupendra Nath Tripathi and Ors.
2010 (5) ESC 630, the Apex Court has
clearly observed in para 24 that NCTE
can lay down minimum qualification for
appointment of teacher by competent
appointing authority or the authority
competent to frame rules and regulations
may lay down any qualification over and
above
the
minimum
qualification
prescribed by NCTE. Para 24 of the
judgment in Bhupendra Nath Tripathi
(supra) reads as under:

"The
is
no
quarrel
with
the
proposition that the State in its discretion
is entitled to prescribe such qualifictions
as it may consider appropriate for
candidates seeking admission into BTC
course so long as the qualifications so
prescribed are not lower than those
prescribed by or under the NCTE Act.
The State can always prescribe higher
qualification, ...."

20. Meaning thereby requirement
for
appointment
of
a
teacher,
as
contemplated by Act 1993, is that the
teacher education must be such as is in
conformity with Act 1993 and that the
teacher
must
possess
minimum
qualification before he is considered for
appointment and then on, Act 1993, in
my view, stops from that stage and
onwards.

21. If I take up the case in hand, the
matter would thereafter be governed by
Act 1972 and the Rules 1981. The
qualification required to be possessed by
a teacher for appointment in a Primary
School is provided in Rule 8 of Rules
1981.
This
rule
has
undergone
amendments from time to time broadly.
Initially it provides for a qualification up
to High School and training qualification
like Basic Teachers Certificate, Junior
Teacher
Certificate,
Certificate
of
Teaching etc. Later on amendments were
made
which
basically
increase
educational qualification of High School
to Intermediate and then to Graduation
but so far as training qualification is
concerned, the same continue to be as
3 All] Sarita Shukla and others V. State of U.P. and others
1503
such. For the first time, an amendment
was made in 2004 by adding "Special
Basic Teachers Certificate Course" as
one of the training qualification under
Rule
8(1).
Subsequently
another
amendment came to be made by
notification dated 25.11.2006 in Rule
8(1). To this extent there is no dispute
among the parties.

22. The large scale employment in
Primary Schools maintained by Board
constitute a major chunk of litigation
before this Court in the last 20 years and
more. The reason being the large number
of schools and quantum of employment
generated thereby.

23.

The
Basic
Education
authorities, time and against have also
contributed a lot, either by their mindless
activities or deliberate and otherwise
illegal acts. In fact after the judgement of
Apex Court in Mohini Jain Vs. State of
Karnataka, AIR 1992 SC 1858 and
Unni Krishnan J.P. Vs. State of A.P.,
AIR 1993 SC 2178 and the cases
followed thereafter observing Primary
Education to children from age of 6 to 14
years as a constitutional right, efforts
were made by Governments, Central and
State both, to expand primary education
by establishing primary schools at
Village Panchayat level in a major way
and this really give a boomerang to
number of schools as also corresponding
increase in number of teachers requiring
to man these institution.

24. The Court has been informed at
the Bar that at present the number of
primary schools in the State of U.P. are
more than one lac and twenty five
thousands which obviously mean that
number of posts of teachers would also
exceed the said figure.

25. It would be appropriate at this
stage to remind that Parliament also
recognized above right by inserting
Article 21A in the Constitution i.e. 'Right
to Education', by Constitution (86th
Amendment)
Act,
2002,
and,
simultaneously inserting Clause (k) in
Article
51A
vide
Section
4
of
Constitution (86th Amendment) Act,
2002. The Parliament also in furtherance
of the above constitutional provisions,
come forward by enacting Act 2009
published in Gazette of Indian on
27.8.2009. By virtue of Section 1(3) of
Act 2009, it has been given effect from
01.4.2010.

26. One of the major change it has
brought, besides other, is that no Primary
School other than a school established,
owned or controlled by the appropriate
Government
or
local
body
after
commencement of 2009 Act shall be
established or function without obtaining
a certificate of recognition from such
authority, as may be prescribed. For the
purpose of seeking recognition, the
school has to conform the norms and
standard specified in Section 19 of Act
2009 read with the schedule appended
thereto. The Act 2009, vide Section
23(1), also provides that any person
possessing such minimum qualification,
as laid down by an academic authority
authorised by the Central Government,
by notification, shall be eligible for
appointment as a teacher. Section 23 (1)
therefore also talks of only eligibility for
appointment as teacher but does not
confer any corresponding right upon a
person to claim appointment as teacher
merely if he fulfills the qualification
1504 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
prescribed under Section (1) of Section
23.
Simultaneously
there
is
no
corresponding obligation for offering
appointment to such person as teacher.
The power of State Legislature vide
Entry 25 List 3 Schedule VII of the
Constitution therefore to the extent it
make provisions for governing primary
schools
and
providing
provisions
governing recruitment and conditions of
service of teachers in such school is not
curtailed in any manner.

27. Now, I come to the basic
provision made by NCTE which has
been referred to by Sri Kushwaha,
learned
counsel
appearing
for
respondents. The Department of School
Education and Literacy, Ministry of
Human
Resource
Development,
Government of India by notification
No.S.O.
750
(E)
dated
31.3.2010
authorised NCTE as academic authority
to prescribe minimum qualification for
appointment of a teacher. Consequently,
with reference to Section 23(1) NCTE
issued
notification
dated
23.8.2010
laying down minimum qualifications for
a person to be eligible for appointment as
a teacher in Class 1 to 8 in a school
referred to in Clause (n) of Section 2 of
2009 Act.

28. Section 2(n) of 2009 Act
defines "School" for the purpose of 2009
Act and reads as under:

"school" means any recognised
school imparting elementary education
and includes-

(i) a school established, owned or
controlled
by
the
appropriate
Government or local authority;

(ii) an aided school receiving aid or
grants to meet whole or part of its
expenses
from
the
appropriate
Government or the local authority;

(iii) a school belonging to specified
category; and

(iv) an unaided school not receiving
any kind of aid or grants to meet its
expenses
from
the
appropriate
Government or the local authority;"

29. The minimum qualification
prescribed
in
notification
dated
23.8.2010 are in two parts, one for Junior
Primary School namely Classes I to V
and another is for Senior Primary School
i.e. Class VI to VIII. Besides educational
qualifications, for the first time, it also
introduced eligibility qualification of
teacher i.e. Eligibility Test i.e. passing of
Teachers
Eligibility
Test (in
short
'T.E.T.')
conducted
by
concerned
Government in accordance with the
guidelines laid down by NCTE. Para 3 of
notification dated 23.8.2010 provides for
compulsory training qualification and it
reads as under:

"Training to be undergone.- A
person-

(a) with BA/B.Sc. with at least 50%
marks and B.Ed qualification shall also
be eligible for appointment for class I to
V upto 1st January, 2012, provided he
undergoes, after appointment, and NCTE
recognized 6-month special programme
in Elementary Education.

(b) with B.Ed (Special Education) or
B. Ed (Special Education) qualification
shall undergo, after appointment, an
3 All] Sarita Shukla and others V. State of U.P. and others
1505
NCTE
recognized
6-month
special
programme in Elementary Education."

30. NCTE issued a notification on
29.7.2011 in purported exercise of
powers under Section 23 of 2009 Act.
The aforesaid notification has amended
notification dated 23.8.2010. Sub-para (i)
and (ii) of Para 1; para 3 and para 5 have
been substituted in entirety. For ready
reference,
the
amended
relevant
provisions i.e. para 1(i) and (ii) and para
3 reads as under:

"1. Minimum Qualification :-

(i) Classes I-V

(a)
Senior
Secondary
(or
its
equivalent) with at least 50% marks and
2-year Diploma in Elementary Education
(by whatever name known)
OR

Senior Secondary (or its equivalent)
with at least 45% marks and 2-year
Diploma in Elementary Education (by
whatever name known), in accordance
with the NCTE (Recognition Norms and
Procedure), Regulations, 2002.
OR

Senior Secondary (or its equivalent)
with at least 50% marks and 4-year
Bachelor
of
Elementary
Education
(B.El.Ed)
OR

Senior Secondary (or its equivalent)
with at least 50% marks and 2-year
Diploma
in
Education
(Special
Education)
OR

Graduation and two year Diploma
in Elementary Education (by whatever
name known)
AND

(b) Pass in the Teacher Eligibility
Test (TET), to be conducted by the
appropriate Government in accordance
with the Guidelines framed by the NCTE
for the purpose.

(ii) Class VI-VIII

(a) Graduation and 2-year Diploma
in Elementary Education (by whatever
name known)
OR

Graduation with at least 50% marks
and 1-year Bachelor in Education
(B.Ed.)
OR

Graduation 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.
OR

Senior Secondary (or its equivalent)
with at least 50% marks and 4-year
Bachelor
in
Elementary
Education
(B.El.Ed.)
OR

Senior Secondary (or its equivalent)
with at least 50% marks and 4-year
B.A./B.Sc.Ed. or B.A.Ed./B.Sc.Ed.
OR

Graduation with at least 50% marks
and 1-year B.Ed. (Special Education)
AND

(b) Pass in Teacher Eligibility Test
(TET),
to
be
conducted
by
the
appropriate Government in accordance
with the Guidelines framed by the NCTE
for the purpose."

31. Para 5 of notification dated
29.7.2011 is a kind of saving clause and
provides
that
if
an
advertisement
initiating process of appointment of
1506 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
teachers has already been issued before
29.7.2011, such appointments may be
made
in
accordance
with
NCTE
(Determination
of
Minimum
Qualifications
for
Recruitment
of
Teachers in Schools) Regulations, 2001
(as amended from time to time).

32. Sub para (b) of para 5 provides
that minimum qualification prescribed by
notification dated 29.7.2011 shall apply
to all teachers except the teacher for
Physical Education, for which NCTE
Regulation
dated
03.11.2001,
as
amended from time to time, shall
continue to apply. Further regarding
teachers
of
Art
Education,
Craft
Education,
Home
Science,
Work
Education, etc. the existing eligibility
norms
prescribed
by
the
State
Government
and
other
school
managements shall be applicable till such
time the NCTE lays down the minimum
qualification in respect of such teachers.

33. The above discussion makes it
beyond doubt that the above notifications
issued by NCTE lays down minimum
qualification, which would make a
person eligible for appointment as a
teacher in Primary Schools but the
manner
in
which
recruitments
for
appointment on the post of teacher in
Primary School shall be made, and, their
terms and conditions of service, for the
same, aforesaid notification does not
provide anything at all and hence in this
regard Rules 1981 shall hold the field
and would continue to apply.

34. Sri Kushwaha, learned Standing
Counsel
vehemently
contended
that
advertisement
dated
29/30.11.2011
contemplates
requisite
six
months
training contemplated in para 3 of
Notification dated 29.7.2011 and for that
purpose respondents authorities cannot
be compelled to go to observe procedure
prescribed in Rule 14(1) of Rules 1981
hence scrutiny of advertisement in
question cannot be made with reference
to Rules 1981. To the extent the
argument is limited for making selection
of persons for providing six months
training contemplated in para 3 of the
notification dated 29.7.2011, this court
Court finds no hesitation in upholding
the contention of Sri Kushwaha. The
respondents need not go to follow the
procedure prescribed in Rule 14(1) of
Rules 1981 for the purpose of selecting
persons for six months Special training
and there is no difficulty.

35. If that would have been the
matter, it could have rest thereat. But
then the clause assailed by the petitioners
has to be examined in the light of the
provisions of the Constitution namely
Article 14. NCTE does not lay down the
manner in which any person would be
selected for undergoing training in six
months contemplated in para 3 of the
notification dated 29.7.2011 except of
providing certain relaxation for reserved
category candidates which is not the
matter of dispute in the present case. It is
the Secretary of the Board under whose
authority the advertisement in question
has
been
published
containing
a
condition restricting a candidate from
submitting his application in more than
five districts.

36. Admittedly, selection is not
being made for any individual Primary
School or Primary Schools constituted in
a particular area namely local area or the
district.
If
this
Court
treat
the
advertisement in question that it confine
3 All] Sarita Shukla and others V. State of U.P. and others
1507
only for the purpose of selecting
candidates
to
undergo
training
contemplated in para 3 of NCTE
notification dated 29.7.2011, the Court
finds no rationality or logic by confining
a candidate to apply only for five
districts and not more than that. Paras 7
and 8 of the advertisement shows that
every candidate has to apply separately
in different districts. Meaning therefore
the selection is confined to a particular
district. The District constitute a unit of
selection. The candidate may be resident
of any district in the State of U.P. but he
may choose the district for submitting his
application on his own and submit
application for selection for special
training
pursuant
to
the
said
advertisement. However, out of the
existing 75 district in the State of U.P. a
candidate
has
been
restricted
for
submitting applications in only five
districts. What is the criteria or principle
behind the condition of restricting a
candidate from applying for more than
five districts is not discernible from the
entire advertisement. When the selection
is to be made on District Level basis, if it
is possible for a candidate, why he
cannot apply in as much as district as he
can is beyond comprehension.

37. One of the possible ground
suggested is if
the candidate
are
permitted to apply in all the districts
irrespective of any restriction with regard
to number of districts, quantity of
applications may become unmanageable
and therefore for practical convenience,
restriction
has
been
made
that
a
candidate should not apply for more than
five districts. But the restriction to five
districts and not more or less thereto is
not
understandable.
It
is
not
commensurating
to
the
Commissionerates/Divisions
or
otherwise but appears that just a figure of
five districts taken from Hat has been
mentioned
in
the
advertisement,
impugned in this case. With regard to
selecting number of districts as five in
the above advertisement no rationality or
logic
could
be
provided
by
the
respondents. One can understand if the
selection would have been made on
Provincial level then there cannot be any
restriction on number of districts unless
so provided by some Statute. The
selection could have been made at State
level and thereafter candidates could
have been allocated to different district
to undergo training in the concerned
institutions but the respondents have
adopted a totally different procedure by
restricting number of applications to only
five districts which is wholly irrational,
arbitrary and hence violative of Article
14 of the Constitution.

38. It is well settled that in the
matter of selection and appointment etc.
the policy decisions can be taken by the
State and the same are not lightly to be
interfered by the Court in judicial review
but if such policy decision is ex facie
irrational, illogical and arbitrary, it can be
axed by the Courts while going for
judicial review. The respondents in the
absence of the counter affidavit had the
opportunity to show deliberation available
on record, if any, made while formulating
the above policy to show justification or
rationality for restricting a candidate in
applying in only five districts but that
option has not been availed by the
respondents though they have opportunity
to do so. No such request was made. It
appears that on this aspect there is not
even deliberation on the part of the
respondents. In a sheer momentary flash
1508 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
this condition has been made part of the
process of selection without applying
mind to its logic and rationality. It is also
not discernible as to whether any rational
object the respondents intent to achieve
by making this restriction. The said
condition also fails ex facie to show any
nexus with the undisclosed objectives
sought to be achieved. It is well settled
that any policy decision, which is ex facie
arbitrary, irrational or illogical is violative
of Article 14 and cannot sustain.

39. I need not burden this judment
with catena of authorities on this aspect
since the law is now well settled. The
aforesaid condition, therefore, is difficult
to sustain and has to be struck down
accordingly.

40. Sri Kushwaha, learned counsel
for the respondents drew my attention to
para 10 of the advertisement which
provides that those candidates who shall
successfully complete training of six
months, be appointed on substantive basis
on the post of teacher following the
procedure prescribed in Rules 1981, as
amended by 12th amendment of 2011. To
my mind, para 12 of the advertisement
nowhere
contemplate
or
empower
respondents
in
issuing
straightway,
appointment letter as soon as a candidate
complete special training of six months
but makes it very clear that Rules 1981
thereafter shall be followed for making
substantive appointment which include
within itself the procedure prescribed in
Rule 14(1) of Rules 1981. On a query
made, Sri Kushwaha stated as per his
instructions no further advertisement as
contemplated in Rule 14(1) of Rules 1981
is contemplated and appointments shall be
made straightway by issuing letter of
appointment by competent appointing
authority i.e. District Basic Education
Officer. I do not find any reason to go by
the above statement made on behalf of the
respondents and instead find it sufficient
to make it clear and beyond doubt that
respondents before issuing letters of
appointment, appointing any person as
teacher in a Primary School, shall without
fail, observe and follow strictly procedure
prescribed in Rules 1981 including that of
Rule 14(1) so long it continue to operate,
and only thereafter appointment shall be
made and not otherwise. It is worthy to
notice at this stage that repeatedly this
Court has observed that an appointment to
the post of teacher in a Primary School
cannot be made without observing the
procedure laid down in Rules 1981.

41. The writ petition, in view of the
above discussion, succeed and is allowed.
The
impugned
advertisement
dated
30.11.2011 in so far it restricts a
candidate in submitting application only
for five districts is hereby quashed.

42. Since as a result of quashing of
the aforesaid condition, the candidates
have necessarily to be given opportunity
to make/submit applications for various
districts, the respondents shall issue a
fresh advertisement consistent with the
directions as above. It is also and further
directed that after completion of special
training of six months, no appointment on
the post of teacher in Primary Schools
governed by Rules 1981 shall be made
without
following
the
procedure
prescribed therein including rule 14(1) as
amended from time to time so long it is
operating.

43. The Court finds that due to
unmindful acts of the respondents, the
candidates like petitioners aspiring for
3 All] C/M Saltnat Bahadur Post Graduate College and another V. State of U.P. and others
1509
appointment in primary schools in large
number are running from pillar to post
and hence harassed. Hence, the petitioners
are also entitled to cost which is
quantified to Rs.10,000/-.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2011

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 71377 of 2011

C/M Saltnat Bahadur Post Graduate
College and another

 ...Petitioner
Versus
State of U.P. Thru Secy. and others

 ...Respondents

Counsel for the Petitioner:
Sri V.D. Shukla
Sri Ashok Khare

Counsel for the Respondents:
C.S.C.
Sri A.K. Singh

Constitution
of
India,
Article
226Amendment in Scheme of administrationwhether can be made retrospectively or
prospectively?
Held-considering
two
conflicting view of Division Bench-matter
referred to Larger Bench.

Held: Para 11

 In view of the two conflicting views of the
Division Benches of this Court, I am of the
opinion that the matter should be referred
to the Larger Bench for decision on the
following two questions:-

(1) Whether the amendment will
become effective from the date of the
amendment?
And

(2)
Whether
the
amendment,
extending the term of the committee of
management, will apply to the existing
committee of management, which has
made the amendment or it applies to the
committee of management which will be
formed after the election being held after
the amendment?
Case law discussed:
Special Appeal No. 1709 of 2007, in the case of
Committee of Management, Arya Kanya Inter
College, Bulandshahr and others vs. State of U.P.
and others; 1994 (24) ALR 410; (2000) 2
UPLBEC 1107

(Delivered by Hon'ble Rajes Kumar, J. )

1. Heard Sri Ashok Khare, learned
Senior Advocate, appearing on behalf of the
petitioners. Sri G.K. Singh appears on
behalf of respondent no.4 and Sri A.K.
Singh on behalf of respondent no.2.
Learned Standing Counsel appears on
behalf of respondent no.1.

2. The brief facts, giving rise to the
present petition, are that there is a Society,
registered under the Societies Registration
Act, 1860, in the name of Saltanat Bahadur
Degree College Association, Badlapur,
Jaunpur. It has its own bye-laws. The said
Society has established a Post Graduate
Degree College in the name of Saltanat
Bahadur Post Graduate College at Badlapur,
Jaunpur. The said College is affiliated with
Veer Bahadur Singh Purvanchal University,
Jaunpur and is governed by the provisions
of the U.P. State Universities Act, 1973.
Under the bye-laws of the Society and the
College, the term of the committee of
management was three years. The last
election of the committee of management
was held on 3.3.2008. In the said election,
Sri Rakesh Kumar Singh was elected as the
President and Sri Vinod Kumar Singh as the
Manager. The said election has been duly
approved by the Vice Chancellor of the
University by the order dated 6.5.2008. The
approval was accorded to the committee of