# Smt. Neha Sharma v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 428
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-07
- **Case number:** Service Single No. 1495 of 2015
- **Bench:** Devendra Kumar Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-neha-sharma-v-state-of-u-p-ors-43182
- **Pages:** 6

## Headnote

Constitution of India, Art.-226-Scope of
Judicial Review-essential qualification-for
TGT(English)-3 years Bachelor's degree
with English subject-petitioner being M.A.
(English) with 2 year English course in
graduation-claims appointment-held-with
limited scope of judicial review-neither
mandamus can be issued to bring withing
eligibility zone-nor can interfere-petition
dismissed.
Held: Para-17
Thus,
in
view
of
the
aforesaid
pronouncements of Hon'ble Supreme
Court it can safely be summed up that
the grounds of judicial review by this
Court in exercise of its jurisdiction under
Article 226 of the Constitution of India in
a case where challenge is made to the
prescription
of
essential
educational
qualification for a teaching post, is very
limited.
Case Law discussed:
Civil Appeal No. 1010 of 2000; AIR 1965 SC
491; [(1997) 1 SCC 253]; [(2007) 5 SCC 519];
[(1990) 1 SCC 288; [(2008) 10 SCC 1].

## Text

428
 INDIAN LAW REPORTS ALLAHABAD SERIES
17. The offending vehicle was
clearly being driven in breach of Section
149 (2) (a) (ii) of the Act and, thus, the
insurance company cannot be held liable
to pay the compensation. The insurance
company has already been directed to
make payment of the amount to the
claimant-respondents.
The
insurance
company shall be liable to recover the
same from the owner of the offending
vehicle, namely, respondent no. 4.
18. The appeal stands allowed to the
extent directed above.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.04.2015
BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
Service Single No. 1495 of 2015
Smt. Neha Sharma
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Shivam Sharma
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Scope of
Judicial Review-essential qualification-for
TGT(English)-3 years Bachelor's degree
with English subject-petitioner being M.A.
(English) with 2 year English course in
graduation-claims appointment-held-with
limited scope of judicial review-neither
mandamus can be issued to bring withing
eligibility zone-nor can interfere-petition
dismissed.
Held: Para-17
Thus,
in
view
of
the
aforesaid
pronouncements of Hon'ble Supreme
Court it can safely be summed up that
the grounds of judicial review by this
Court in exercise of its jurisdiction under
Article 226 of the Constitution of India in
a case where challenge is made to the
prescription
of
essential
educational
qualification for a teaching post, is very
limited.
Case Law discussed:
Civil Appeal No. 1010 of 2000; AIR 1965 SC
491; [(1997) 1 SCC 253]; [(2007) 5 SCC 519];
[(1990) 1 SCC 288; [(2008) 10 SCC 1].
(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)
1. Heard Shri Ratnesh Chandra,
learned
counsel
appearing
for
the
petitioner and learned Standing Counsel
appearing for the respondents.
2. These proceedings under Article
226 of the Constitution of India have been
instituted by the petitioner challenging the
advertisement dated 17.03.2015, in so far
as it restricts selection to the post of
Trained Graduate Teacher (English) only
to the candidates, who have graduated
with English in all the three years of their
Graduation Course, to the exclusion of
candidates credited with a degree of Post
Graduation in English.
3. In effect, the petitioner challenges
the educational qualification prescribed
by
the
respondent
no.2
for
selection/appointment
as
Trained
Graduate Teacher (English), according to
which, only those Graduates in English
will be eligible, who have studied English
as a subject in all the three years of their
Graduation Course.
4. The State Government has taken a
decision to establish Model Schools in the
State of Uttar Pradesh and for the said
1 All] Smt. Neha Sharma Vs. State of U.P. & Ors.
429
purpose Rajya Model School Organization,
Uttar Pradesh, has been established as a
Society. The purpose of establishing Rajya
Model School Organization, it appears, is
to establish Model Schools on the pattern
of
Kendriya
Vidyalayas
established
throughout the country by Kendriya
Vidyalaya Sangathan. The Rajya Model
School Organization, Uttar Pradesh has
advertised various teaching posts to be
filled in these Model Schools, which are to
be established and affiliated with the
Central Board of Secondary Education,
New Delhi.
5. As per the annexure no.3 annexed
with
this
petition,
the
essential
qualification prescribed for the post of
Trained Graduate Teacher in English is
that
the
candidate
should
possess
Graduation Degree in English with 50%
minimum marks along with the degree of
B.Ed./L.T. from a University established
under law or from any other Institution.
6. The petitioner is a Post Graduate
in English from University of Lucknow.
She is also possessed of a B.Ed. Degree
from
Indra
Gandhi
National
Open
University. Further, the petitioner has also
qualified the Central Teacher Eligibility
Test (CTET) conducted by the Central
Board of Secondary Education, New
Delhi. The petitioner also possesses a
Graduation
Degree
from
Lucknow
University. She studied Geography and
Psychology as two subjects in the third
and last year of her B.A. Course. In the
first and second year of B.A. Course, the
petitioner had studied English as one of
the subjects.
7. Submission of learned counsel for
the petitioner is that the petitioner
possesses a qualification higher than the
educational qualification prescribed by
the Rajya Model School Organization,
and hence, she is better equipped to teach
the students, who are to be imparted
education in class VI to X. It has further
been argued by the learned counsel for the
petitioner that if a candidate possesses
higher qualification than the essential
qualification prescribed, the same cannot
be permitted to come as a hurdle in
his/her way to seek public employment.
8. It has also been stated by the
learned counsel for the petitioner that the
Model Schools being established by the
State of Uttar Pradesh, are going to be
affiliated
with
Central
Board
of
Secondary Education for the purposes of
admitting the students to participate in the
examination conducted by the said Board
and
Central
Board
of
Secondary
Education has framed bye laws for the
purposes of regulating various aspects of
the institutions, which are affiliated with
it. He has further stated that the Central
Board of Secondary Education affiliation
bye laws prescribe qualification for
appointment as Trained Graduate Teacher
(English) as Graduation in/with the
subject, recognized Degree/Diploma in
Education and B.A.B.Ed. with English of
the Regional College of Education. He
has further submitted that since the Model
Schools are going to be affiliated with
Central Board of Secondary Education,
hence, it was incumbent upon the Rajya
Model School Organization to have
borrowed the qualification prescribed by
the Central Board of Secondary Education
in its affiliation bye laws.
9. Learned counsel for the petitioner
in support of his submission that higher
qualification should not come to the
disadvantage of a candidate seeking
430
 INDIAN LAW REPORTS ALLAHABAD SERIES
employment, has relied upon a judgment
of Hon'ble Supreme Court in the case of
Mohd. Riazul Usman Gani and ors. vs.
District and Sessions Judge, Nagpur and
others, (Civil Appeal No.1010 of 2000),
rendered on 11.02.2000.
10. Per contra, Shri Pratyush
Tripathi and Shri Ajay Kumar, learned
Standing Counsels, have submitted that
the qualification prescribed by the Rajya
Model School Organization for the post of
Trained Graduate Teacher in English,
have
been
borrowed
from
the
prescriptions made for the said purpose by
the Kendriya Vidyalaya Sangathan. It has
also been stated by the learned Standing
Counsels that it is not only that the
qualification for the post in question only
has been borrowed from the prescriptions
made
by
the
Kendriya
Vidyalaya
Sangathan, but it has been borrowed for
all the teaching posts.
11. The question, thus, which calls
for determination by the Court is as to
whether
a
candidate,
possessing
a
Master's Degree in English having studied
English only in two years of his/her
Graduation Course, instead of studying
English in all the three years of the
course, can be said to have been wrongly
excluded by the respondents from the
zone of eligibility.
12. Before dealing with the
submission advanced by the learned
counsel for the petitioner in support of his
case, it would be apt to state that this is
not the province of this Court in exercise
of its jurisdiction under Article 226 of the
Constitution of India to go into and
prescribe the essential qualification for
selection/appointment on a post. In the
case of University of Mysore and Another
vs. C.D. Govinda Rao & another, reported
in AIR 1965 SC 491,it has been observed
by Hon'ble Supreme Court that normally
it is wise and safe for the courts to leave
the decision of academic matters to
experts, who are more familiar with the
problems they face than the courts
generally can be.
13. It is equally well settled
principle of law that it is the policy of the
Government or the employer to create a
post or to prescribe the qualification for
the post. The Court or any Tribunal is
devoid of any power to give any such
direction. The judgment of Hon'ble
Supreme Court in the case of the
Commissioner, Corporation of Madras vs.
Madras Corporation Teachers' Mandram
and others, reported in [(1997) 1 SCC
253] can be referred to in this regard. Yet
another judgment of Hon'ble Supreme
Court in the case of Bihar Public Service
Commission and others vs. Kamini and
others, reported in [(2007) 5 SCC 519,
can be mentioned to reiterate the aforesaid
principle, wherein Hon'ble Supreme Court
has held that it is well settled that in the
field of education, a Court of Law cannot
act as an expert.
14. In the case of J. Ranga Swamy
vs. Government of Andhra Pradesh and
others, reported in [(1990) 1 SCC 288, it
has been held by the Supreme Court that
it is not for the Court to consider the
relevance of qualifications prescribed for
various posts.
15. Reference may also be had to
another judgment of Hon'ble Supreme
Court in the case of Official Liquidator
vs. Dayanand and others, reported in
[(2008) 10 SCC 1], wherein it has been
laid down by Hon'ble Supreme Court that
1 All] Smt. Neha Sharma Vs. State of U.P. & Ors.
431
though the decision of the employer to
create or abolish posts or cadres or to
prescribe
the
source
or
mode
of
recruitment
and
laying
down
the
qualification, etc. is not immune from
judicial review. However, the Court will
always
be
extremely
cautious
and
circumspect in interfering in such matters.
16. Para 59 of the aforesaid
judgment
in
the
case
of
Official
Liquidator (supra) is relevant which is
quoted hereinbelow:
"The creation and abolition of posts,
formation and structuring/restructuring of
cadres, prescribing the source and mode
of recruitment and qualifications and
criteria of selection etc. are matters which
fall within the exclusive domain of the
employer. Although the decision of the
employer to create or abolish posts or
cadres or to prescribe the source or mode
of recruitment and laying down the
qualification etc. is not immune from
judicial review, the Court will always be
extremely cautious and circumspect in
tinkering with the exercise of discretion
by the employer. The Court cannot sit in
appeal over the judgment of the employer
and ordain that a particular post or
number of posts be created or filled by a
particular mode of recruitment. The
power of judicial review can be exercised
in such matters only if it is shown that the
action of the employer is contrary to any
constitutional or statutory provisions or is
patently arbitrary or vitiated by mala
fides."
17. Thus, in view of the aforesaid
pronouncements of Hon'ble Supreme
Court it can safely be summed up that the
grounds of judicial review by this Court
in exercise of its jurisdiction under Article
226 of the Constitution of India in a case
where
challenge
is
made
to
the
prescription
of
essential
educational
qualification for a teaching post, is very
limited.
18. It has been stated by the learned
Standing Counsel, which fact is not
disputed,
that
essential
educational
qualification for all the posts in Model
Schools to be established by the State of
Uttar Pradesh including the post of
Trained Graduate Teacher (English) has
been borrowed from the prescription
made for the said purpose by the
Kendriya Vidyalaya Sangathan.
19. One of the purposes, as observed
above, for establishing the Model Schools
in the State of U.P. is to establish these
institutions on the pattern on which
Kendriya Vidyalayas in the entire country
have been established by Kendriya
Vidyalaya Sangathan, which functions
under the aegis of Central Government.
Thus, it cannot be said that educational
qualification prescribed for the post in
question by the Rajya Model School
Organization, U.P. is without any basis.
20. As already observed above, the
qualification which has been prescribed
for the post in question has been
borrowed from the prescription made in
that regard by Kendriya Vidyalaya, hence,
the ground being urged by the learned
counsel for the
petitioner that the
qualification is unreasonable and without
any basis, in so far as it excludes the Post
Graduates in English from the zone of
eligibility is not tenable.
21. So far as the submission made
by the learned counsel for the petitioner
that since the institutions, which are going
432
 INDIAN LAW REPORTS ALLAHABAD SERIES
to be set up by Rajya Model School
Organization, are to be affiliated with the
Central Board of Secondary Education, as
such the qualification prescribed in the
affiliation bye laws framed by the said
Board are binding and appointment of
teachers in these institutions should also
be
made
in
accordance
with
the
prescriptions made in the affiliation bye
laws is concerned, It may only be
indicated that the said bye laws do not
appear to be binding for the reason that
Kendriya
Vidyalaya
established
by
Kendriya Vidyalaya Sangathan, have also
been affiliated with the Central Board of
Secondary
Education
and
Kendriya
Vidyalayas' prescription for appointment
to the post of TGT (English), is
Graduation in English with the condition
that the candidate should have studied
English in all the thee years of his
Bachelor's Course.
22. The last submission made by the
learned counsel for the petitioner on the
basis of judgment rendered by Hon'ble
Supreme Court in the case of Mohd.
Riazul Usman Gani and ors. (supra) that a
criteria which denies a candidate his right
to be considered for appointment against a
post on the ground that he is having
higher qualification than the qualification
prescribed cannot be reasonable also does
not have any bearing on the fate of this
writ petition.
23. In the case of Mohd. Riazul Usman
Gani and ors. (supra), the matter which
caught attention of Hon'ble Supreme Court
was in relation to appointment of peons in
the subordinate judiciary of the Bombay
High Court. The qualification prescribed for
the post of peon in the said case was "not
lower than a pass in the Examination of
Standard IV in the Regional Language."
Certain candidates desirous of appointment
to the said post of peon were having higher
qualification and at the time of short listing,
the candidates having higher qualification
than a pass in Examination of Standard IV,
were
excluded
from
the
zone
of
consideration. Hon'ble Supreme Court while
examining the rules relating to various posts,
including the posts where recruitment was
made by way of making promotion from
amongst the peons and qualification for such
higher posts was higher than the qualification
prescribed for the post of peon, has
considered that in case a peon having higher
qualification is excluded from the zone of
consideration for appointment on the said
post, then promotion to the posts from
amongst the peons, who did not fulfill the
requirement of higher qualification, could not
be made. Further, Hon'ble Supreme Court
has decided the said case of Mohd. Riazul
Usman Gani and ors. (supra) in the facts of
the said case, relevant observations made by
Hon'ble Supreme Court in the said case is as
follows:
"A criterion which has the effect of
denying a candidate his right to be
considered for the post on the principle that
he is having higher qualification, than
prescribed cannot be rational. We have not
been able to appreciate as to why those
candidates who possessed qualifications
equivalent to SSC examination could also
not be considered. We are saying this on the
facts of the case in hand and should not be
understood as laying down a rule of
universal application."
(Emphasis supplied by the Court)
24. From a perusal of the
aforequoted
observations
made
by
Hon'ble Supreme Court in the case of
Mohd. Riazul Usman Gani and ors.
1 All] Satyendra @ Maggan & Ors. Vs. State of U.P. & Anr.
433
(supra) makes it clear that the proposition
that a candidate cannot be denied his
participation for selection for appointment
on a post on the basis that he is having
higher qualification, thus, cannot be
applied universally. The application of the
said principle of law would depend on the
facts and circumstances of the case.
25. In the instant case, it is not
known as to whether the incumbent, who
would be appointed on the post of TGT
(English)
teacher,
would
have
any
avenues of promotion. Even if the
promotional avenues are made available
to such TGT (English) teacher, what
would be the eligibility criteria for
promotion to the higher post is also not
known. Thus, looking to the facts of this
case, the judgment rendered by Hon'ble
Supreme Court in the case of Mohd.
Riazul Usman Gani and ors. (supra) does
not come to the rescue of the petitioner.
26. At the cost of reiteration, it may
be stated that the fact that the respondents
have borrowed
the qualification for
appointment to the post in question on the
prescriptions made in that regard by
Kendriya Vidyalaya Sangathan, itself is
sufficient to sustain the qualification
prescribed by the respondents which has
been challenged in this writ petition.
27. It may further be observed that in
exercise of its jurisdiction under Article 226
of the Constitution of India, neither the
prescription made by the respondents for
appointment to the post in question can be
set aside nor any Mandamus can be issued to
include the candidates having Post Graduate
qualification in English within the eligibility
zone. Such matters, as observed above, are in
the exclusive domain of the employer or the
Government being a policy matter.
28. For the reasons given and
discussions made above in the preceding
paragraphs, I do not find any illegality in
the impugned qualification prescribed by
the respondents for the post in question.
29. Accordingly, the writ petition is
dismissed.
30.
Before parting the case, I may,
however, observe that for consideration of
candidates
having
Post
Graduate
qualification in English for consideration of
appointment on the post of TGT (English),
since such authority lies with the employer,
it would be open to the petitioner to take up
her cause before the authority concerned by
way of making a representation. If the
petitioner
in
this
regard
makes
a
representation to the authority concerned
raising all the pleas, which may be available
to her, the same shall be considered and
decided by the authority concerned without
being influenced by any of the observations
made hereinabove.
31. There will be no order as to
costs.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.04.2015
BEFORE
THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.
Criminal Revision No. 2120 of 2007
Satyendra @ Maggan & Ors. Revisionists
Versus
State of U.P. & Anr.
...Opp. Parties
Counsel for the Revisionist:
Hira Lal
Counsel for the Opp. Parties:
Govt. Advocate