# Smt. Mala Yadav & Ors v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 760
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-16
- **Case number:** Writ A No. 40447 of 2014
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-mala-yadav-ors-v-state-of-u-p-ors-51645
- **Pages:** 13

## Headnote

Service Law - Equivalence of Educational
Qualifications for Appointment -

Petitioners,
holding
Certificate
in
Nursery
Training (C.T. Shishu Shiksha) and having
passed the Uttar Pradesh Teachers Eligibility
Test
(TET)
2013,
challenged
their
nonappointment as Assistant Teachers in primary
schools (Classes I to V), claiming equivalence of
their Nursery Training Certificate with the
Diploma in Elementary Education as per NCTE
notifications dated 23.08.2010 and 29.07.2011 -
Held, the Nursery Training Certificate, designed
for pre-school and up to Classes I-II (children
aged 4-6 and 6-8), is not equivalent to the Basic
Teachers Certificate (BTC) or Diploma in
Elementary Education required for teaching
Classes I to V, as clarified by NCTE and
supported by the Division Bench in Uttar
Pradesh Basic Shiksha Parishad Vs Sakshi
Shukla - The petitioners' qualifications did not
meet the advertisement's requirement of a 2year BTC, Urdu BTC, or Special BTC. (Paras 2,
3, 5, 11, 12, 21, 24, 25, 26)

Service Law - NCTE's Authority and
Statutory Compliance - Petitioners relied on
NCTE
notifications
dated
23.08.2010
and
29.07.2011, arguing that their Nursery Training
Certificate qualifies as a Diploma in Elementary
Education (by whatever name known) - Held,
NCTE's authority under the National Council for
Teacher Education (Amendment) Act, 2011, to
prescribe minimum qualifications for teachers in
primary schools is binding, but the Nursery
Training
Certificate
is
recognized
under
Appendix-4 of NCTE Regulations, 2002, for early
childhood education (pre-school and Classes III), not for Classes I-V under Appendix-1 or 2 of
NCTE
Regulations,
2009
-
The
St.'s
advertisement specifying BTC as a requirement
was consistent with NCTE standards and the
U.P. Basic Education (Teachers) Service Rules,

## Text

_Characters 0–39,717 of 42,437. This is a partial read: ask again with offset=39717 for what follows._

760 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2024) 3 ILRA 760
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.02.2024
BEFORE
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ A No. 40447 of 2014
With
Writ A No. 55061 of 2014
With
Writ A No. 39733 of 2017

Smt. Mala Yadav & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ajay Kumar Mishra, Sri Abhishek Kumar
Yadav, Sri Ashok Khare (Sr. Advocate), Sri
Chandan Sharma, Sri Prabhakar Awasthi,
Sri V.K. Yadav, Sri Himanshu Singh

Counsel for the Respondents:
C.S.C., Sri A.K.Yadav, Ms. Archana Singh,
Sri B.P. Singh, Sri Vikram Bahadur Singh,
Sri Shivendra Singh Bhadauriya

Service Law - Equivalence of Educational
Qualifications for Appointment -

Petitioners,
holding
Certificate
in
Nursery
Training (C.T. Shishu Shiksha) and having
passed the Uttar Pradesh Teachers Eligibility
Test
(TET)
2013,
challenged
their
nonappointment as Assistant Teachers in primary
schools (Classes I to V), claiming equivalence of
their Nursery Training Certificate with the
Diploma in Elementary Education as per NCTE
notifications dated 23.08.2010 and 29.07.2011 -
Held, the Nursery Training Certificate, designed
for pre-school and up to Classes I-II (children
aged 4-6 and 6-8), is not equivalent to the Basic
Teachers Certificate (BTC) or Diploma in
Elementary Education required for teaching
Classes I to V, as clarified by NCTE and
supported by the Division Bench in Uttar
Pradesh Basic Shiksha Parishad Vs Sakshi
Shukla - The petitioners' qualifications did not
meet the advertisement's requirement of a 2year BTC, Urdu BTC, or Special BTC. (Paras 2,
3, 5, 11, 12, 21, 24, 25, 26)

Service Law - NCTE's Authority and
Statutory Compliance - Petitioners relied on
NCTE
notifications
dated
23.08.2010
and
29.07.2011, arguing that their Nursery Training
Certificate qualifies as a Diploma in Elementary
Education (by whatever name known) - Held,
NCTE's authority under the National Council for
Teacher Education (Amendment) Act, 2011, to
prescribe minimum qualifications for teachers in
primary schools is binding, but the Nursery
Training
Certificate
is
recognized
under
Appendix-4 of NCTE Regulations, 2002, for early
childhood education (pre-school and Classes III), not for Classes I-V under Appendix-1 or 2 of
NCTE
Regulations,
2009
-
The
St.'s
advertisement specifying BTC as a requirement
was consistent with NCTE standards and the
U.P. Basic Education (Teachers) Service Rules,
1981. (Paras 4, 5, 12, 16, 20, 21)

Judicial Precedent - Interpretation of
Harsh Kumar and U.P. Basic Shiksha
Parishad - Petitioners relied on Harsh Kumar
Vs St. of U.P. (Special Appeal (D) No. 130 of
2014),
which
mandated
considering
qualifications under NCTE notifications for
Assistant Teacher appointments - Held, Harsh
Kumar did not specifically address the
equivalence of Nursery Training Certificate with
BTC and left verification to authorities - In
contrast, U.P. Basic Shiksha Parishad Vs Sakshi
Shukla explicitly held that the Nursery Training
Certificate is not suitable for teaching Classes
III-V, limiting its scope to pre-school and
Classes I-II - The latter judgment, considering
NCTE's stand and a subsequent notification
dated 12.11.2014, prevails over petitioners'
claims. (Paras 7, 9, 12, 19, 20, 21)

Service
Law
-
Course
Content
and
Teaching
Competence

-
The
Court
compared the syllabus of the Certificate in
Nursery Training (C.T. Shishu Shiksha) with that
of the Basic Teachers Certificate (BTC) - Held,
the BTC's comprehensive curriculum, covering
subjects like Hindi, Environmental Studies,
Mathematics,
and
classroom
teaching
for
Classes I-V, is more extensive than the C.T.
3 All. Smt. Mala Yadav & Ors. Vs. State of U.P. & Ors.
761
Shishu Shiksha, which is limited to early
childhood education principles and methods
suitable for pre-school and up to Class II - The
petitioners failed to provide evidence that their
course content equips them to teach up to Class
VS (Paras 22, 23, 24, 25, 26)

Service Law - Allegation of Fraudulent
Application - Respondents alleged that
petitioners
misrepresented
having
BTC
qualifications in their online applications - Held,
while the issue of fraud was raised, the Court's
decision rested on the non-equivalence of the
Nursery Training Certificate with BTC, rendering
the fraud issue secondary - The petitioners'
ineligibility due to lack of required qualifications
was sufficient to dismiss the petitions. (Para 10)

Writ Petitions Dismissed .

Interim Orders Vacated.

List of Cases Cited :

1. Harsh Kumar & anr. Vs St. of U.P. & ors. ,
Special Appeal (D) No. 130 of 2014, decided on
05.02.2014

2. Uttar Pradesh Basic Shiksha Parishad Vs
Sakshi Shukla & ors. , Special Appeal No. 915 of
2015, decided on 07.04.2016

3. Shiv Kumar Sharma Vs St. of U.P. , 2013 (6)
ADJ 310

4. Ram Surat Yadav & ors. Vs St. of U.P. & ors. ,
(Full Bench, cited in Harsh Kumar)

5. Basic Education Board, U.P. Vs Upendra Rai &
ors. , (referred in Harsh Kumar)

6. Ashok Kumar Bajpai , (cited in Special Appeal
(D) No. 356 of 2015)

7. Hind Lamps Ltd. , (cited in Special Appeal (D)
No. 356 of 2015)

8. St. of U.P. & ors. , (cited in Special Appeal
(D) No. 356 of 2015)

9. Uma Yadav , (cited in U.P. Basic Shiksha
Parishad)
(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Petitioners before this Court have
passed Certificate in Nursery Training
Examination-2013 (for short "Nursery
Training
Certificate")
conducted
by
Examination Regulatory Authority, Uttar
Pradesh (for short "Authority") and their
respective certificates are part of record.

2. Petitioners have also passed Uttar
Pradesh Teachers Eligibility Test, 2013 (for
short "TET") and thereafter participated in
counselling for appointment of Assistant
Teachers but they were not appointed
purportedly on a ground that they have not
possessed essential qualification in terms of
notification/advertisement
dated
17.10.2013 i.e. they have not qualified 2
years BTC Course/2 years Urdu BTC
Course or Special BTC Course and that
"Nursery Training Certificate" would not
be equivalent to said essential qualification.
For reference, Vigyapti/Advertisement for
district Barabanki dated 17.10.2013 is
mentioned below -:

"ववञवप्त

कायाालय वजला बेवसक वर्शक्षा अविकारी जनपि
बाराबांकी

पत्राांक विनाांक

जनपि बाराबांकी में उिर प्रिेर्श बेवसक वर्शक्षा पररर्ि्
द्वारा सांचावलि पररर्िीय प्राथवमक ववद्यालयों में र्शासनािेर्श सांख्या-
3635/79-5-2013-14(10) विनाांक 25 वसिम्बर 2013
एवां र्शासनािेर्श सांख्या - 3774/79-5-2013-14(10)/10
विनाांक 15 अक्टूबर 2013 के अनुक्रम में सहायि अध्यापिों
िे ररक्त पदों िे सापेक्ष कद्ववषीय बी.टी.सी., कद्ववषीय उदूग
बी.टी.सी. एवं कवकशष्ट बी.टी.सी. प्रकशक्षण प्राप्त तथा उत्तर
प्रदेश राज्य अथवा िेन्र सरिार द्वारा आयोकित अध्यापि
पात्रता परीक्षा उत्तीणग अभ्यकथगयों से िुल 100 ररक्त पदों पर
कियुकक्त हेतु ऑिलाइि ई-आवेदि पत्र आमंकत्रत किये िाते है।
ऑनलाइन ई-आवेिन पत्र का प्रारूप आपरेर्शनल विर्शा वनिेर्श एवां
762 INDIAN LAW REPORTS ALLAHABAD SERIES
जनपिवार
ररवक्तयों
का
वववरण
वेबसाइट
http://upbasiceduparishad.gov.in/ पर विनाांक
17.10.2018 से विनाांक 13.11.2013 की रावत्र 12 बजे
िक उपलब्ि रहेगा। पररर्िीय प्राथवमक ववद्यालयों में सहायक
अध्यापक के पिों पर चयन/वनयुवक्त अध्यापक सेवा वनयमावली
1981(अद्यिन िथा सांर्शोविि) िथा ववद्यालयों मेंेां अध्यापक
िैनािी वनयमावली 2008 (अद्यिन िथा सांर्शोविि) के अनुसार की
जायेगी। पररर्िीय प्राथवमक ववद्यालयों में सहायक अध्यापक पि पर
इच्िुक अहा अभ्यवथायों द्वारा सवाप्रथम वनविाष्ट वेबसाइट पर वनिााररि
प्रवक्रयानुसार रवजस्ट्रेर्शन कर वाांविि प्रवववष्टयों को पूणा करना होगा।
रवजस्ट्रेर्शन के उपरान्ि ई-चालान से वकसी भी जनपि के वकसी भी
भारिीय स्टेट बैंक की र्शाखा में सवचव उ.प्र. बेवसक वर्शक्षा पररर्ि
के नाम पर वनिााररि र्शुजक जमा कर ई-चालान आई.डी/जनाल
(Journal) नम्बर प्राप्त करना होगा इसके अविररक्त अभ्यथी सभी
बैंको के ATM Cum Debit cards/Credit Cards
िथा SBI Internet Banking द्वारा भी आवेिन र्शुजक का
भुगिान कर सकिे है। ई-चालान आई-डी/जनाल (Journal)
नम्बर प्राप्त करने के िो बैंवकग कायाविवस के पिाि पुनः वनविाष्ट
वेबसाइट पर बैंक द्वारा प्राप्त ई-चालान आई-डी/जनाल (Journal)
नम्बर से आवेिन पत्र को पूणा करना अवनवाया होगा अभ्यथी द्वारा
काउवन्सवलांग के समय रवजस्ट्रेर्शन, ई-चालान रसीि िथा फोटो
अपलोड़ करने के बाि भरे गये आवेिन का वप्रन्ट आउट प्रस्िुि
करना भी आवश्यक होगा।

वजला बेवसक वर्शक्षा अविकारी

जनपि बाराबांकी"

3. Essentially, case of the petitioners
is that Nursery Training Certificate is
equivalent to Diploma in Elementary
Education (by whatsoever name known) in
terms of notification dated 23.08.2010
issued by National Council for Teachers
Education (fort short "NCTE") as such it
would be equivalent to BTC Course.

4. It is further case of the petitioners
that after enforcement of Right of Children
to Free and Compulsory Education Act,
2009 (for short "Act of 2009") and
thereafter enforcement of Uttar Pradesh
Right of Children to Free and Compulsory
Education Rules, 2011 (for short "Rules of
2011"),
and
whereby
subsequent
to
notification issued by NCTE (competent
authority)
which
provided
minimum
qualification for appointment of Assistant
Teacher in primary school and promotion
of Assistant Teacher in State of UP have to
be
in
terms
of
Notification
dated
23.08.2010 and amended Notification dated
29.07.2011 issued by NCTE.

5. Sri Ashok Khare, Senior Advocate
assisted
by
S/Sri
Himanshu
Singh,
Prabhakar Awasthi
and Ajay
Kumar
Mishra, learned counsel for the petitioners
has
vehemently
referred
and
placed
reliance upon notification dated 23.08.2010
issued
by
NCTE
that
minimum
qualification for teachers of class I to V is
Senior Secondary or its equivalent with at
least 50% marks and two years Diploma in
Elementary Education (by whatsoever
name known) and that since the petitioners
have Nursery Training Certificates which is
equivalent to Diploma in Elementary
Education
though
known
by
said
terminology and is also equivalent to Basic
Training Certificate i.e. BTC, therefore,
they possessed minimum eligibility.

6. Learned Senior Advocate also
urged
that
minimum
qualification
prescribed in terms of aforesaid notification
dated 23.08.2010 has not been completely
followed by respondents and despite
petitioners were duly eligible having
minimum educational qualification were
wrongly denied from their appointment
despite they participated in counselling and
they would have definitely in merit list if
their result were declared.

7. In support of his submissions,
learned
Senior Advocate
has
placed
reliance upon a judgment of Division
Bench of this Court in Special Appeal (D)
3 All. Smt. Mala Yadav & Ors. Vs. State of U.P. & Ors.
763
No. 130 of 2014 (Harsh Kumar and
another vs. State of U.P. and others)
passed
on
05.02.2014
and
relevant
paragraphs thereof are mentioned below -:

"8. On 23 August 2010, the
NCTE
prescribed
the
minimum
qualifications for a person to be eligible for
appointment as a teacher for Classes I to
VIII in a school referred to in Section 2 (n)
of the Act of 2009 with effect from the date
of notification. This notification was
amended by the notification dated 29 July
2011. As per the amended notification, the
minimum qualifications which have been
prescribed for appointment of an Assistant
Teacher for teaching students from Classes
I to V are now as follows:

"(i) Classes I-V.

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

OR

Senior
Secondary
(or
its
equivalent) with at least 45% marks and 2year 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 4year Bachelor of Elementary Education
(B.El.Ed.)

OR

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

OR

Graduate 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."

9. At this stage, it may also be
necessary to note that the Parliament
enacted the National Council for Teacher
Education (Amendment) Act, 2011 to
provide that the Act shall apply, inter-alia,
to schools imparting pre-primary, primary,
upper
primary,
secondary
or
senior
secondary education and to colleges
providing senior secondary or intermediate
education and to teachers of such schools
and colleges. Similarly, the expression
'school' was defined in Section 2(ka) to
mean any recognised school imparting preprimary, primary, upper primary, secondary
or senior secondary education, or a college
imparting senior secondary education.
Section 12A was inserted into the principal
legislation to empower the NCTE to
determine the qualifications of persons to
be 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 recognised by the
Central
Government
or
by
a
State
Government or a local or other authority.
The provisions of the Act and Regulations
have been held to be binding by a Full
Bench of this Court in Shiv Kumar Sharma
(supra). Prior to the enforcement of the
amending Act, the Supreme Court had
referred for consideration by a larger Bench
of three Hon'ble Judges, an earlier view
taken in Basic Education Board, U.P. Vs.
Upendra Rai & Ors.2 in which it had been
held that the NCTE Act does not deal with
ordinary
educational
institutions
like
primary schools, high schools, intermediate
colleges
or
universities
and
would,
consequently, not override the U.P. Basic
764 INDIAN LAW REPORTS ALLAHABAD SERIES
Education Act and the Rules made
thereunder. In view of the amending Act, a
Bench of three learned Judges of the
Supreme
Court,
while
deciding
the
reference on the correctness of the view in
Upendra Rai (supra), observed that during
the pendency of the appeals, the Amending
Act
had
rendered
the
issues
for
consideration referred to the larger Bench
as academic. These developments have
been taken due note of in a recent judgment
of a Full Bench of this Court in Ram Surat
Yadav & Ors. Vs. State of U.P. & Ors.3

10. Thus, the point to be noted is
that after the enforcement of the Act of
2009 and the issuance of the notification of
23 August 2010, the qualifications which
have been prescribed for appointment of
primary teachers must necessarily be those
that are stipulated in the notification dated
23 August 2010, as amended by the
notification dated 27 August 2011.

11. Undoubtedly, the Rules of
1981
do
prescribe
the
essential
qualification for appointment of Assistant
Teachers in Junior Basic Schools where
education is imparted from Classes I to V.
The relevant qualifications which are
prescribed in Rule 8 are as follows:

"(ii)
Assistant
Master
and
Assistant Mistress of Junior Basic School

A Bachelor's Degree from a
University established by law in India or a
Degree recognised by the Government as
equivalent thereto together with the training
qualification consisting of a Basic Teacher's
Certificate,
Vishist
Basic
Teachers
Certificate (B.T.C.) two years BTC Urdu
Special
Training
Course,
Hindustani
Teacher's
Certificate,
Junior
Teacher's
Certificate, Certificate of Teaching or any
other training training course recognised by
the Government as equivalent there:

Provided
that
the
essential
qualification for a candidate who has
passed the required training course shall be
the same which was prescribed for
admission to the said training course."

12. The qualifications, which
have been prescribed by the NCTE in the
notification dated 29 July 2011 include
Senior Secondary with at least 50% marks
together
with a
2-year
Diploma in
Education (Special Education). Once, these
qualifications have been prescribed by the
NCTE, this would necessarily be binding
and it is not open to the State Government
to exclude (from the zone of eligibility) the
persons who are otherwise qualified in
terms of the notification dated 23 August
2010 as amended on 29 July 2011.

13. In this view of the matter, we
are of the opinion that the learned Single
Judge was in error in coming to the
conclusion that since the recruitment was in
pursuance
of
a
special
drive,
the
Government was justified in confining the
eligibility qualifications only to those who
held the BTC qualifications for the reason
that such candidates could not be adjusted
earlier for want of TET qualification. The
passing of the TET was introduced as a
mandatory requirement by the notification
dated 23 August 2010 issued by the NCTE.
Persons who did not fulfill the eligibility
conditions prescribed in the notification
dated 23 August 2010, as amended on 29
July
2011,
were
not
qualified
for
consideration for appointment as primary
school teachers. Hence, there was no
occasion for the State to contend or for that
matter the learned Single Judge to accept
the submission that in order to adjust such
BTC qualified candidates, the present
advertisement had been issued. The learned
Single Judge held that the appellants could
not
claim
equivalence
with
those
candidates who possess BTC qualification.
This, in our view, begs the question
because once the Diploma in Education
3 All. Smt. Mala Yadav & Ors. Vs. State of U.P. & Ors.
765
(Special Education) is held to be a
qualification which is recognised for
appointment of Assistant Teachers for
teaching Classes I to V, it would be
impermissible for the State Government to
exclude them from being considered for
appointment.
In
a
special
drive
or
otherwise, it is not open to the State
Government to exclude one class of
teachers who fulfill the qualifications for
eligibility prescribed by the NCTE. Any
such action would be impermissible for the
simple reason that the exclusive power to
prescribe eligibility qualifications for such
teachers is vested in the NCTE. Once the
NCTE has spoken on the subject, as it has
through its notification, those qualifications
must govern the eligibility requirement.
Jurisdiction and power of the NCTE to do
so is now settled beyond any doubt, as
noted by the Supreme Court.

14. In the circumstances, the
special appeals would have to be allowed
and
are,
accordingly,
allowed.
The
impugned judgment and order of the
learned Single Judge dated 14 November
2013 is set aside. A mandamus would,
accordingly, issue directing the State to
permit the appellants and such other
persons who claim to be holding the
qualifications which are within the purview
of the notification issued by the NCTE on
23 August 2010, as amended on 29 July
2011, to apply for the post of Assistant
Teachers for Classes I to V which was the
subject matter of the advertisement in
question.

15. Since the Court is informed
that the process of counseling is still to
commence, we direct the State Government
to act in accordance with the aforesaid
direction in processing and completing the
selection process.

16. We clarify that the issue as to
whether
the
appellants
hold
the
qualifications strictly in accordance with
the notification issued by the NCTE has not
been decided by us since that is a matter of
verification by the authority concerned."
[emphasis supplied]

8. Learned Senior Advocate also
submitted that above referred mandamus
was not honoured and despite petitioners'
case was squarely covered with above
referred judgment in Harsh Kumar (supra),
still they were not selected.

9. In present bunch of cases, an
interim order was passed on 25.09.2024
that result of petitioners be declared and in
case their aggregate was above the cut off
merit, appointment letters be issued to
them. The interim order was challenged by
the State in Special Appeal (D) No. 356 of
2015. The Division Bench of this Court
allowed the Special Appeal by a judgment
dated 01.02.2019. Relevant part thereof is
quoted below -:

"The Division Bench in the case
of U.P. Basic Shiksha Parishad (supra) had
clearly
distinguished
between
NTT
Diploma which is only eligible for preschool teaching and maximum upto Class 1
and 2 and does not cover Junior Basic
School in which education is imparted for
Class 1 to 5. The said Teachers Certificate
(Shishu Shiksha), which is equivalent to
NTT and this diploma at best can be for
teaching in preschools education and not
for Junior Basic Schools, which is
imparting education from Class 1 to 5.

In view of the above, the learned
Single Judge erred in directing the
respondents-appellants to declare the result
of the petitioners-respondents and issue
appointment letters on the basis of the
judgment of Harsh Kumar (supra) and Uma
Yadav (supra) as both the Division Benches
766 INDIAN LAW REPORTS ALLAHABAD SERIES
had only held that the minimum prescribed
qualification for appointment of Assistant
Teachers shall be, as per the notification of
NCTE dated 23.8.2010 as amended on
29.7.2011 and have no where dealt the
issue in regard to the present Teachers
Certificate (Shishu Shiksha) or Nursery
Teachers Training (NTT). It was only in the
case of U.P. Basic Shikha Parishad that the
issue was dealt in depth and both the
aforesaid Division Bench judgments were
also taken note off.

Further, in view of the judgment
of this Court in the case of Ashok Kumar
Bajpai (supra), Hind Lamps Ltd.(supra) and
State of U.P. and others (supra), we are of
the view that no final relief can be granted
at the interim stage, unless and until the
Court is satisfied that ultimately the
petitioner is bound to succeed and fact
situation warrants granting such a relief. In
the present case, as one of the Division
Bench had taken a view that diploma in
NTT is not equivalent to BTC as such, the
relief granted would amounts to final relief
and in the facts of the case the situation
does not warrant for passing of such order
at the interim stage.

Hence the order passed by the
learned Single Judge dated 25.9.2014 is set
aside, and the Special Appeal is allowed
leaving it open for the learned Single Judge
to decide the matter on its own merits after
the exchange of affidavits and also
considering the subsequent Division Bench
Judgment in the case of U.P. Basic Shiksha
Parishad (supra)."
[emphasis supplied]

10. Per contra, Ms. Archana Singh,
learned counsel for the respondent, Sri
Shivendra
Singh
Bhadauriya,
learned
counsel for the respondent no. 5 and Sri
R.N. Pandey, Sri Shashi Prakash Singh,
learned Additional Chief Standing Counsel,
Sri Ashish Kumar Nagvanshi, Sri Ravi
Prakash Srivastava, Ms. Shruti Malviya and
Sri Survesh Srivastava, learned Standing
Counsel for

the
State
respondents
have
submitted that petitioners' act were not
bonafide. In online form, it was declared
that they have passed BTC course and
filled imaginary maximum number and
imaginary number they got, knowingly
they have never passed BTC. Learned
counsel for respondents have referred copy
of forms submitted by petitioners online,
being part of a supplementary counter
affidavit filed on 24.05.2019 and they have
submitted that petitioners have played
fraud.

11. Learned counsel further urged that
Nursery Training Certificate was only for
nursery teachers i.e. for pre-school and
maximum upto Class I and II which could
not be equivalent to teaching skill required
for students of class I to V.

12. Learned counsel further placed
reliance on a judgment passed by Division
Bench of this Court in Uttar Pradesh Basic
Shiksha Parishad vs. Sakshi Shukla and
others (Special Appeal N. 915 of 2015,
decided
on
07.04.2016)
wherein
a
subsequent
notification
dated
12th
November, 2014 issued by NCTE was also
consideration that whether Diploma in
Nursery Teacher Education was one of
minimum
qualifications
for
Preschool/nursery followed by first two years
in a formal school and whether it was not
included in minimum qualification for
primary and upper primary (for class I to
VIII). Relevant part of judgment is
mentioned hereinafter -:

"N.C.T.E. was not at all a
party before the learned Single Judge and
3 All. Smt. Mala Yadav & Ors. Vs. State of U.P. & Ors.
767
the learned Single Judge on this bona fide
belief that the issue raised is squarely
covered by the law laid down in the case of
Uma Yadav (supra), proceeded to allow the
writ petition and in view of this, as we had
no other option, we asked for assistance of
N.C.T.E. before us and N.C.T.E. has come
up with the specific stand that the course in
question
that
has
been
pursued
by
petitioners-respondents from Dau Dayal
Mahila P.G. College, Firozabad, which was
recognised on 30th April, 2004, has been as
per Appendix-4 of Regulation 2002 known
as Norms and Standards for Nursery
Teacher Education Programme (form of
Application for recognition, the time limit
of
submission
of
application,
Determination of Norms and Standards for
Recognition
of
Teachers
Education
Programme and permission to start new
course of training), Regulation 2002 and
N.T.T. course is basically meant for
children in the age group of 4-6 followed
by first 2 years in a formal education i.e. of
children in the age group of 6-8 years as
mentioned in Appendix-4 of Regulations,
2002.

N.T.T. course is not recognized
under Appendix I or II of N.C.T.E.
Recognition
(Norms
and
Procedure)
Regulation
2009
as
Appendix-I
of
Regulation 2009 is only meant for Early
Childhood Education Programme leading
to Diploma in Early Childhood Education
(D.E.C.Ed.). Early Childhood Education
(E.C.E.) includes Class I and II of the
Primary Education and same is of crucial
importance from the point of view and
perspective of the development of child's
language, intelligence and personality.
Elementary Teacher Education Programme
aims at preparing teachers for elementary
stage of education i.e. Classes I to VI/VIII
and in Recognition (Norms and Procedure)
Regulation 2009, Appendix-I has subsumed
Pre-School Teacher Education Programme
(P.T.T.) and Nursery Teacher Training
Programme (N.T.T.) both i.e. Appendix-3
and
4
of
Recognition
(Norms
and
Procedure) Regulation 2002 and said
nomenclature has been changed to Diploma
in Early Childhood Education (D.E.C.Ed.)
as Appendix-1 and N.T.T. course of 2 years
duration in Dau Dayal P.G. Mahila College
was granted Recognition under appendix-4
of the Regulation 2002 and not at all under
the Regulations of 2009.

N.T.T. Course as mentioned in
the Government Order dated 30.06.2010 is
not at all recognized under the Appendix-1
or 2 of the Regulations 2009 and N.T.T.
Course is recognized as per Appendix-4 of
the Regulation 2002. Petitioners-opposite
party have completed two years course of
Nursery Teacher Training from Dau Dayal
Mahila (P.G.) College, Firozabad, after they
have applied for persuing said Course
pursuant to Government Order dated
30.06.2010, wherein categorical mention
has been made that in reference of Nursery
Teacher Training, Nursery School means
where children upto the age of 6 years and
below
Class
I
are
being
imparted
instructions.
Petitioners-opposite
party
right from day one knew fully well the
nature of course that was pursued by them
and the said course/training was designed
to impart instructions child below six years
of age and to classes below 1st standard.
Basic Shiksha Parishad in the State of U.P.
does not accord recognition to any Nursery
School to run additionally Class 1 and 2.
There are three category of institutions (1)
Nursery School (ii) Junior Basic School
(iii) Senior Basic School. Petitionersopposite parties can be at the best
appointed in Nursery School but they
cannot be appointed in Junior Basic
School/Senior Basic School.
768 INDIAN LAW REPORTS ALLAHABAD SERIES

Once such is the specific stand of
N.C.T.E., then we cannot arrive to a
conclusion that petitioners-opposite parties,
who have proceeded to pursue N.T.T.
course from Dau Dayal Mahila P.G.
College
Firozabad
that
has
received
recognition on 13th April, 2004 as per
Appendix-4 of Regulation, 2002, can be
said to be equipped with the facilities of
imparting instructions qua teachers eligible
to teach Class I to V.

Once N.T.T. Course as per the
petitioners-opposite parties is designed for
children in the age group of 4-6 followed
by first 2 years in the formal school i.e. of
children in the age group of 6-8 years, then
the said course in question cannot be
carried forward even to the students of
Class III to V as it would be going beyond
the N.T.T. course that has been designed.

Much emphasis has been laid on
the fact that petitioner-opposite parties have
cleared Teacher Eligibility Test meant for
class 1 to 5 and in view of this, there
exclusion in selection on its face value is
arbitrary.

We may at this juncture, refer to a
Full Bench judgement of our Court in the
case of Shiv Kumar Sharma vs. State of
U.P. 2013 (6) ADJ 310, wherein view has
been taken that teacher eligibility test is an
essential qualification that has to be
possessed by every candidate who seeks
appointment as a teacher of elementary
education in Class 1 to 5 as per the
notification dated 23.08.2010. Academic
Authorities are empowered to fix minimum
qualification which is inclusive of Teacher
Eligibility Test, and Teacher Eligibility Test
has to be passed in addition to the
educational/training qualification. Merely
because one has undertaken Teacher
Eligibility Test, does not mean that he/she
fulfils
educational/training
qualification
also.

Consequently, in the facts of the
case, the Basic Shiksha Parishad is right at
the point of time when it submits that
learned Single Judge has erred in giving
directions
by
blindly
following
the
judgement in the case of Uma Yadav
(supra) and Harsh Kumar (supra) and in
view of this, Special Appeal is allowed.
Judgement of learned Single Judge is set
aside. Petitioner-opposite parties have
received training N.T.T. from an institution
entitled to impart training for childhood in
the age group of 4-6 followed by two years
in formal school, are not eligible to teach
class 1 to 5, in Institutions run and
managed by Basic Shiksha Parishad."
[emphasis supplied]

13. Learned Senior Advocate for
petitioners
has
responded
to
above
submission
that
U.P.
Basic
Shiksha
Parishad (supra) was in regard to private
institutions. He has referred documents
annexed with supplementary affidavit and
referred following paragraphs of it -:

"(a)
Although
as
mentioned
above, the training holders of C.T.
(Nursery) have always been appointed in
the Nursery Schools as well as in Primary
Schools run by the Board and accordingly,
it was specifically clarified by the then
Secretary of the Board on 04.01.1986.
Similarly, through other circulars of the
Board Issued on 12.3.2002, 4.3.2003,
17.3.2004, 4.1.2007 and 12.6.2008 by the
respective Secretaries posted time to time
along with Directorate, S.C.E.R.T., U.P.,
Lucknow and also by the State Govt.
through
government
order
dated
09.01.2009. The copies of the initial Rules
of 1981 enforced on 03.01.1981 and the
Rules of 1981 after incorporation of the
19th Amendment dated 30.05.2014 shall be
placed at the time of arguments. However,
3 All. Smt. Mala Yadav & Ors. Vs. State of U.P. & Ors.
769
the copies of the said circulars of Board dt:
4-1-1986 12.3.2002, 4.3.2003, 17.3.2004,
4.1.2007
and
12.6.2008
and
the
government order dated 09.01.2009 are
being
jointly
annexed
herewith
as
Annexure no.3 to this Affidavit.

(b)
It
is
also
respectfully
submitted that through the said government
order dated 09.01.2009, the teachers having
C.T. training qualification had also been
made eligible for their promotion as L.T.
Grade
teacher
after
having
attained
experience of 5 years (as C.T. grade has
become Dying Cadre) in the Intermediate
colleges.

(c)
It
is
also
respectfully
submitted that an advertisement made by
the Basic Shiksha Adhikari, Allahabad on
11.10.2002
mentioning
C.T.
training
qualification as an eligibility qualification
and thereafter, appointments of respective
candidates were also made. Similarly, the
appointment of C.T. training holders was
also made in District Shahjahanpur and
Allahabad on the instructions of the
Secretary, Board. The coples of the
advertisement
dated
11.10.2002,
the
instruction of the Secretary, Board dated
11.11.2002 and the appointment order
issued pursuant thereto on 29.11.2002 are
being jointly annexed herewith and marked
as Annexure no.4 to this Affidavit.

(d) The Right of Education was
made fundamental right to the children at
the age of 6 to 14 years under Article 21-A
of the Constitution of India and for
enforcement thereof, the R.T.E. Act, 2009
(Act no.35 of 2009) was made, which was
enforced on 26.08.2009; and in view
thereof, the T.Ε.Τ./C.T.E.T. was prescribed
as a minimum qualification and the
Diploma
in
Elementary
Education
(D.El.Ed.)(by whatever name known) as an
eligibility qualification for the appointment
as a teacher from Class-I to V by the
N.C.T.E. through their notifications dated
23.08.2010 and 29.07.2011, which have
also
been
accepted
by
the
State
Government through U.P.R.T.E. Rules,
2011 enforced on 27.07.2011. In the said
Act, Rules or notifications of the N.C.T.E.,
it has nowhere been stated that C.T.
training holders are not eligible for
appointment. A such, in view thereof, even
after enforcement of the R.T.E. Act, 2009,
the appointments of C.T. training holders
have been made in different districts on
different dates by the respective Basic
Shiksha Adhikaris of the State. The copies
of the direction issued by the Secretary,
Board dated 31.07.2009, appointment letter
dated 14.09.2009 issued by the Basic
Shiksha Adhikari, Mirzapur and the another
appointment letter dated 25.11.2009 issued
by the Basic Shiksha Adhikari, Varanasi are
being jointly annexed herewith and marked
as Annexure no.5 to this Affidavit."

14. Heard learned counsel for parties
and perused the record.

15. The issue before this Court for
consideration is that whether "Nursery
Training Certificate" is equivalent to
"Diploma in Elementary Education" (by
whatsoever name known) (as mentioned in
NCTE notification dated 23.08.2010 as
amended on 29.07.2011) and subsequent
notification dated 12.09.2014 and whether
it is also equivalent to "Basic Teachers
Training
Certificate"
for
purpose
of
minimum qualification for post of Assistant
Teacher in primary school (class I to V) run
by Basic Education Board?

16. The crux of argument of
petitioners is that once NCTE, the
appropriate
Authority
under
National
Council
for
Teachers
Education
(Amendment) Act, 2011, by a notification
770 INDIAN LAW REPORTS ALLAHABAD SERIES
has provided minimum qualification in
terms of Act of 2009, the same will govern
irrespective of any minimum qualification
prescribed for appointment on post of
Assistant Teacher by of any State.

17. In order to substantiate argument,
learned Senior Advocate has referred
various provisions of above referred Act,
Rules and Circulars which do not require to
elaborate since they have been considered
by Division Bench of this Court in Harsh
Kumar (supra), a judgment relied upon by
petitioner.

18. Relevant part of Harsh Kumar
(supra) has already been quoted in earlier
part of this judgment and for disposal of
this judgment, a general mandamus issued
in Harsh Kumar (supra) is repeated
hereinafter -:

"14. In the circumstances, the
special appeals would have to be allowed
and
are,
accordingly,
allowed.
The
impugned judgment and order of the
learned Single Judge dated 14 November
2013 is set aside. A mandamus would,
accordingly, issue directing the State to
permit the appellants and such other
persons who claim to be holding the
qualifications which are within the
purview of the notification issued by the
NCTE on 23 August 2010, as amended
on 29 July 2011, to apply for the post of
Assistant Teachers for Classes I to V
which was the subject matter of the
advertisement in question.

15. Since the Court is informed
that the process of counseling is still to
commence, we direct the State Government
to act in accordance with the aforesaid
direction in processing and completing the
selection process.

16. We clarify that the issue as to
whether
the
appellants
hold
the
qualifications strictly in accordance with
the notification issued by the NCTE has not
been decided by us since that is a matter of
verification by the authority concerned."

19. The above mandamus was that the
essential qualification given in Notification
dated
23.08.2010
as
amended
by
Notification dated 27.08.2011 be applied in
selection process in question subject to
verification whether candidate possesses
qualification in terms of notification,
therefore, there was no occasion for
Division
Bench
to
consider
whether
"Nursery Training Certificate" would be a
minimum qualification equivalent to BTC
Course?

20. The above issue was later on
considered by another Division Bench of
this Court in Uttar Pradesh Basic Shiksha
Parishad (supra) wherein Harsh Kumar
(supra) as well as a subsequent notification
dated 12.11.2014 issued by NCTE was also
considered. As well as stand of NCTE was
also heard.

21. The Division Bench in Uttar
Pradesh Basic Shiksha Parishad (supra) has
thereafter arrived to a considered opinion
that -:

"i.
"Nursery
Training
Programme"
as
mentioned
in
the
Government Order dated 30.06.2010 is not
at all recognized under Appendix I or II of
NCTE
(Recognitions
Norms
and
Procedure)
Regulations,
2009.
N.T.T.
Course is recognized as per Appendix-4 of
Regulations,
2009
meant
for
early
childhood education.
3 All. Smt. Mala Yadav & Ors. Vs. State of U.P. & Ors.
771

ii. Early Childhood Education
(ECE) is for pre-school and class I and II of
primary education only.

iii.
Elementary
Training
Education Programme aims of preparing
teachers for elementary stage of education
i.e. class I to VI/VII.

iv. Basic Shiksha Parishad of
State of U.P. does not accord recognition to
any nursery school to run additionally class
I and II. There are three categories of
institutions (i) Nursery School (ii) Junior
Basic School (iii) Senior Basic School.
Petitioners-opposite parties can be at the
best appointed in Nursery School but they
cannot be appointed in Junior Basic
School/Senior Basic School.

v. Once N.T.T. Course as per the
petitioners-opposite parties is designed for
children in the age group of 4-6 followed
by first 2 years in the formal school i.e. of
children in the age group of 6-8 years, then

the said course in question cannot be
carried forward even to the students of
Class III to V as it would be going beyond
the N.T.T. course that has been designed."

22. The above reference makes a clear
difference in nursery school and Junior
basic
school
and
their
respective
requirement of teachers in terms of their
minimum education. The certificate in
question is "Certificate Teacher (ShishuShiksha) Examination-2013. The subject of
course are वर्शक्षा वसद्धाांि िथा वर्शक्षालय सांगठन, बाल
अध्ययन, ववर्शेर् पाठन वववि ञानोपकरण, ववर्शेर् पाठन वववि ववर्य
and for reference, a certificate and result of
one petitioner is scanned hereinafter -:
772 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Petitioners have not brought on
record details of study material/syllabus of
referred examination in order to show that
it would sufficient upto class-V also,
whereas the Basic Teacher Certificate
course has extensive study material much
more than C.T. (Shishu Shiksha). For
reference same is mentioned below -: