# Smt. Sadhana Singh v. State of U.P. and others

- **Citation:** (2011) 1 ILRA 283
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-03-28
- **Case number:** Special Appeal No. 1323 D of 2009
- **Bench:** Sunil Ambwani, K.N. Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sadhana-singh-v-state-of-u-p-and-others-41872
- **Pages:** 8

## Headnote

Constitution of India, Art. 14 and Art.
226-Special
B.T.C.
Training
Coursepetitioner obtained decree from State of
Jammu Kashmir-denied admission-helddiscriminatly-can not be denied-view
taken by Single Judge Contrary to full
Bench
decision-not
sustainableCandidature
can
not
be
cancelled
provided on merit she stand in merit list.

Held: Para 13 & 14

Special BTC training course is designed
to equip those candidates, who have
B.Ed. degrees to take teachers training
for primary classes for the purposes of
employment.
It
is
an
employment
oriented course. It is not denied that all
the successful candidates, who have
passed BTC examination are employed in
Primary Schools funded by the Central
Government
under
Serv
Shiksha
Abhiyan. The exclusion of some of the
candidates, who have taken degrees
from the universities situate in the State
to which NCTE Act does not apply would
be a hostile and invidious discrimination
to them. Such students cannot be put at
fault on account of special status given
to the State of Jammu and Kashmir.

The reasoning given by the Full Bench in
Bhupendra Nath Triapthi is squarely
applicable to the case. If the students
having obtained B.Ed. degrees in the
period, when NCTE Act was not enforced
or where institutions have applied but
the recognition was not given can be
considered for selection in Special BTC
course,
the
exclusion
of
those
candidates, who have obtained degrees
from the States to which NCTE Act does
not apply, would be discriminatory and
violative of right to equality under Art.14
and 16 of the Constitution of India.
Case law discussed:
Special Appeal No.858 of 2008, Bhupendra
Nath Tripathi & others Vs. State of U.P. & Ors,
Kamlesh Kumar & Others Vs. State of U.P. &
Ors., Writ-A No.25186 of 2008, 2005 (2)
Western Law Cases (Raj.) 358.

## Text

1 All] Smt. Sadhana Singh V. State of U.P. and others
283
Hasanganj District Lucknow is hereby
quashed and the matter is remanded back
to
the
concerned
learned
Judicial
Magistrate to proceed with the case in
accordance with the provisions of law.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.03.2011

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE K.N. PANDEY, J.

Special Appeal No. 1323 D of 2009

Smt. Sadhana Singh ...Appellant-Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Appellants:
Sri Abhishek Srivastava

Counsel for the Respondents:
Sri R.A. Akhtar
Sri S.G. Hasnain
Sri Ram Krishna

Constitution of India, Art. 14 and Art.
226-Special
B.T.C.
Training
Coursepetitioner obtained decree from State of
Jammu Kashmir-denied admission-helddiscriminatly-can not be denied-view
taken by Single Judge Contrary to full
Bench
decision-not
sustainableCandidature
can
not
be
cancelled
provided on merit she stand in merit list.

Held: Para 13 & 14

Special BTC training course is designed
to equip those candidates, who have
B.Ed. degrees to take teachers training
for primary classes for the purposes of
employment.
It
is
an
employment
oriented course. It is not denied that all
the successful candidates, who have
passed BTC examination are employed in
Primary Schools funded by the Central
Government
under
Serv
Shiksha
Abhiyan. The exclusion of some of the
candidates, who have taken degrees
from the universities situate in the State
to which NCTE Act does not apply would
be a hostile and invidious discrimination
to them. Such students cannot be put at
fault on account of special status given
to the State of Jammu and Kashmir.

The reasoning given by the Full Bench in
Bhupendra Nath Triapthi is squarely
applicable to the case. If the students
having obtained B.Ed. degrees in the
period, when NCTE Act was not enforced
or where institutions have applied but
the recognition was not given can be
considered for selection in Special BTC
course,
the
exclusion
of
those
candidates, who have obtained degrees
from the States to which NCTE Act does
not apply, would be discriminatory and
violative of right to equality under Art.14
and 16 of the Constitution of India.
Case law discussed:
Special Appeal No.858 of 2008, Bhupendra
Nath Tripathi & others Vs. State of U.P. & Ors,
Kamlesh Kumar & Others Vs. State of U.P. &
Ors., Writ-A No.25186 of 2008, 2005 (2)
Western Law Cases (Raj.) 358.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. We have heard Shri Abhishek
Srivastava,
learned
counsel
for the
petitioner-appellant. Shri R.A. Akhtar
appears for the National Council for
Teachers' Education (NCTE)-respondent
No.3. Shri S.G. Hasnain, AAG has
appeared for the State of U.P.

2.. Cause shown for condonation of
delay is sufficient. The delay condonation
application is allowed.

3. The petitioner has obtained
degree of B.Ed. from the Jammu and
Kashmir University. They applied in the
selections for Special BTC Training
284 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Course, 2007 designed specially for those,
who have B.Ed. degrees, for training to
fill up vacancies of teachers with primary
school teachers training, after seeking
approval of the NCTE. The petitioner was
excluded from the selection on the ground
that she has obtained B.Ed. degree from
Jammu and Kashmir University.

4. The question whether the
candidate, who had obtained B.Ed. degree
prior to the enforcement of National
Council of Teachers Education Act, 1993
or after the enforcement of the Act, during
the period, when the application of the
institution or university was pending
consideration was referred to a larger
Bench.

5. The Full Bench of this Court in its
judgment dated 6.1.2009 in Special
Appeal No.858 of 2008, Bhupendra
Nath Tripathi & others Vs. State of
U.P. & Ors. held as follows:-

"The exclusion of the candidates
from the field of eligibility for Special
Basic Training Course 2007, who had
obtained
B.Ed
degree
prior
to
enforcement of National Council for
Teacher Education Act, 1993 or after the
enforcement of National Council for
Teacher Education Act, 1993 during the
period when the application of the
institution or the University was pending
consideration is arbitrary, unreasonable
and violative of Article 14 and 16 of the
Constitution of India, and that the above
two categories of candidates are also
eligible to participate in Special Basic
Training Course 2007".

6. In the judgment giving rise to this
special appeal, learned Single Judge has
held that though NCTE has taken a stand
that the Degree/ Diploma awarded by the
State of Jammu and Kashmir will be valid
for giving appointment in the rest of the
country there was justification in the
wisdom of the State Government to
exclude those candidates who have not
obtained B.Ed. Degree from the institute
recognized
by
the
NCTE.
In
the
judgment, the Court has held that the
candidates with a degree of B.Ed. from
institutions in Jammu and Kashmir form a
different class, and if such class of
candidates have been excluded from
consideration for admission to BTC
Special Training Course, 2007 by the
State Government, purposely, it cannot be
said to be violative of Article 14 of the
Constitution of India.

7. Learned counsel for the petitioner
has
filed
supplementary
affidavit
annexing public notice of the State
Universities published by the University
Grants Commission on 25th August,
2010, the Universities in the State of
Jammu and Kashmir including Jammu
University, Jammu Tawi at Item No.86,
declared eligible for central assistance
under the UGC Act, 1956 with effect
from 1969. The Jammu University is one
of the university recognized by the
University Grants Commission.

8. Shri R.A. Akhtar, learned counsel
appearing for the NCTE submits that the
Council had taken clear stand in the year
2007
by
issuing
letter
No.4921/2005/NCTE/ (N&S) dated 31.5.2007
and
letter
No.49-21/2005/NCTE/N&S
dated 27th June, 2007 sent by Shri V.C.
Tewari,
Member
Secretary
to
all
Educational Secretaries of all State
Governments/ UTs as per list clarifying
the stand of the Council. Both the letters
are quoted as below:-
1 All] Smt. Sadhana Singh V. State of U.P. and others
285
"F.No.49-21/2005NCTE/(N&S) 31.05.2007

To

All Education Secretaries

All State Govts/ UTs as per list

Sub. Issues related to validity of degree in
teacher education obtained from the State of J
& K

Sir,

The NCTE Act, 1993 extends to the whole
of India except of State of J & K the issue of
validity of degrees in teacher education
obtained from the State of Jammu & Kashmir
has been attracting the attention of NCTE and
MHRDd for quite some time past Now the
MHRD has given the following clarifications.

(a) Persons who have obtained degree
from institutions recognized by the Govt. of J &
K/ UGC would be eligible for employment in
Central Govt. and other States and

(b) As the NCTE Act does not cover the
issue of admission in institutions for higher
qualifications, the eligibility of persons with
degrees from institutions in J & K will not be
governed by the provisions of the NTE Act but
by the relevant laws/ rules/ regulations of the
respective States/ Universities.

The
above
clarifications
are
for
information and necessary action.

The above clarifications are for your
information and necessary action.

Yours faithfully

Sd/-V.C. Tewari

Member Secretary

***********

No.49-21/2005/NCTE/N&S 27 June, 2007

To

All Education Secretaries

All State Govts/ UTs as per list.

Sub. Issues related to validity of Diploma/
Certificate in teacher education obtained
from the State of J & K.

Sir,

This is in continuation of our letter of
even number dated 31.05.2007 on the
above mentioned subject. The following
clarifications have further been issued by
Ministry of HRD.

"a diploma or certificate in teacher
education awarded by an institution/
university in the State of Jammu &
Kashmir is also valid for employment in
other parts of the country subject to the
provisions of the act. In other words such
certificates/ diplomas will also have to be
treated on the same footing as a degree
awarded by such institutions."

2. The above clarifications are for your
information and necessary action.

Yours faithfully,

(V.C. Tewari)

Member Secretary."

9. We are informed that learned
Single Judge of this Court in Kamlesh
Kumar & Others Vs. State of U.P. &
Ors., Writ-A No.25186 of 2008 decided
on 6.1.2011 has taken a view, following
the reasoning given in the Full Bench
286 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
judgment in Bhupendra Nath Tripathi's
case that where a degree of B.Ed. was
obtained prior to the enforcement of
NCTE Act, meaning thereby that the
degree was obtained, when NCTE Act
was not enforce the candidate having such
a degree cannot be disqualified for
holding such a degree. The view taken by
learned Single Judge is quoted as below:-

"All these petitioners have been
disqualified for admission in Special
B.T.C. Course-2007 on the ground that
they have obtained their B.Ed. degree
from
various
institutions/Universities
located in Jammu and Kashmir and the
said degrees are not recognized by
N.C.T.C.

The petitioners 1 to 5 passed B.Ed.
examination in the year 2005, 2003, 2995,
2004 and 2004 respectively. N.C.T.E. Act,
admittedly, has no application to the State
of Jammu and Kashmir and it has not
been extended thereto. The educational
degrees imparted by various Universities
in State of Jammu and Kashmir, satisfying
the standards set up by University Grants
Commission, are valid for all purposes. In
Bhupendra Nath Tripathi & others Vs.
State of U.P. & others 2009 (1) ADJ 232),
this Court held that when N.C.T.E. Act
was not in force, the degree of B.Ed.
obtained from respective educational
institutions can not be held to be invalid
for the purpose of selection and admission
in Special B.T.C. Course since the Act at
that time was not applicable. In the case
of State of Jammu and Kashmir also, the
Act has no application. B.Ed. degree
granted by the Universities in Jammu and
Kashmir, in absence of application of
N.C.T.E.
Act
therein,
cannot
be
distinguished qua degrees awarded by
institutions where the Act is applicable
and degrees are recognized or approved
by N.C.T.E.

In my view, the view taken by Full
Bench in Bhupendra Nath Tripathi
(supra) which holds good in respect to
B.E.d degrees obtained by the candidates
before the enforcement of N.C.T.E. Act
would equally apply to B.Ed. degrees
obtained from Jammu and kashmir where
N.C.T.E. Act is yet to be applied. The
disqualification of the candidates on this
ground cannot sustain.

In view of above, respondents are
directed to re-consider case of petitioners
for admisssion in Special B.T.C. Course2007 in the light of the observations made
hereinabove.

With
the
aforesaid
directions/observations, writ petition is
disposed of finally."

10. Shri Abhishek Srivastava
submits that the same reasoning, which
was adopted by the Full Bench, and in the
judgment in Kamlesh Kumar following
the Full Bench in Bhupendra Nath
Tripathi's case, was adopted by the
Rajasthan High Court in Emarata Ram
Pooniya & 8 Ors. Vs. State of
Rajasthan decided on 15.2.2005 reported
in 2005 (2) Western Law Cases (Raj.)
358, the relevant portion of the judgment
is quoted as below:-

"EXCLUSION OF CANDIDATES
HAVING
B.ED.
DEGREE
FROM
UNIVERSITIES IN THE STATE OF J &
K:

32. Lastly, we may deal with the
contention raised by Mr. M.R. Singhvi
and Mr. M.S. Singhvi with respect to
1 All] Smt. Sadhana Singh V. State of U.P. and others
287
finding of the learned Single Judge
excluding the candidature of the persons
who have passed their B.Ed. from the
institutions affiliated to the Universities of
State of Jammu & Kashmir. Learned
Single Judge accepted the contention
holding that the degree of B.Ed. awarded
by the Universities in the State of Jammu
& Kashmir may be valid in that State but
so far as the selections are being held in
the State of Rajasthan pursuant to the
advertisement, in view of the specific
condition in the advertisement that the
candidate must possess a degree as
recognized by the institution, which has
the sanction of N.C.T.E. cannot be held to
be valid. In view of the finding, the
learned
Single
Judge
directed
the
respondents to exclude such of the
candidates from consideration who are
holding the degree of B.Ed. from such
institutions, which are not recognized by
the N.C.T.E.

33. Assailing the finding of the
learned Single Judge on this count, it is
vehemently argued by Mr. M.R. Singhvi,
learned counsel for the interveners that in
terms of Article 1(ii) of the Constitution of
India, the State of Jammu & Kashmir is
integral part of the Union of India, as it
finds place in S. No. 15 of the First
Schedule. Since Jammu & Kashmir forms
an integral part of the Union of India, the
citizens of Jammu & Kashmir possessing
requisite qualification, have the same
right as citizens of the other States to be
considered for recruitment on the posts
advertised. It is further submitted that it
was open for the Union to make law
under Article 317 of the Constitution,
which applies to the State of Jammu &
Kashmir but if the Act of 1993 has not
been made applicable to the State of
Jammu & Kashmir, no fault can be found
with the persons obtaining the degree
from a University situated in the State of
Jammu & Kashmir. It is further submitted
that the learned Single Judge has
erroneously placed reliance on a decision
of the Apex Court in Union of India v.
Shah Goverdhan L. Kabra Teachers
College reported in JT 2002 (8) SC 269.
Mr. N.M. Lodha, learned Additional
Advocate General, has also supported the
contention raised on behalf of the
interveners. It is submitted by Mr. Lodha
that the contention of obtaining a degree
from such institutions which are not
recognized by the N.C.T.E., refers to only
those degrees which have been obtained
from an area to which the provisions of
the
National
Council
for
Teachers
Education Act, 1993, hereinafter referredto as the "Act of 1993" are applicable, as
the State of Jammu & Kashmir has been
excluded from the application of the Act
of 1993, the question of recognition of
degrees awarded by the Universities in
the State of Jammu & Kashmir by
N.C.T.E. does not arise. It is further
submitted that the same view has been
taken by a learned Single Judge of this
Court in Surendra Kumar Gupta v. State
of Rajasthan reported in 2002 (3) RLR
854. The State filed an application for
Special Leave to Appeal before the Apex
Court, but later on, the same was
withdrawn. Thus, The order of the learned
Single
Judge
has
attained
finality.
Pursuant to the directions of the learned
Single Judge in Surendra Kumar's case,
the State issued a direction to consider
the candidature of the persons holding
B.Ed. Degree from a University in the
State of Jammu & Kashmir. On that basis,
the selection list has also been prepared
considering such candidates eligible for
appointment. Mr. Mridul appearing for
288 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
the appellants has supported the judgment
of the learned Single Judge on this count.

34. We have considered the rival
contentions. It is not in dispute that the
Universities
of
Jammu
&
Kashmir
awarding the B.Ed. Degrees finds place in
the list of the Universities published by
the University Grants Commission. Thus,
the B.Ed. Degree obtained by the
candidates in the State of Jammu &
Kashmir is a degree from legally and duly
constituted University. It is also not in
dispute that the provisions of the Act of
1993 have not been made applicable to
the Universities in the State of Jammu &
Kashmir.
Thus,
the
question
of
recognition of degree awarded by the
Universities in Jammu & Kashmir by the
N.C.T.E. Does not arise. So far as the
decision of the Apex Court in Goverdhan
L. Kabra Teachers College's case (supra),
relied upon by the learned Single Judge is
concerned, the same has no application to
the facts of the case. In the said case, the
question
was
with
respect
to
the
Constitutional validity of Section 17(4) of
the Act of 1993. The Division Bench of
this Court declared the provisions of
Section 17(4) of the Act of 1993 ultra
vires of the Constitution being beyond the
competence of the Union Legislature. On
examining the Statute as a whole and
applying the doctrine of pith and
substance, the Apex Court held that even
if Sub-section (4) of Section 17 is very
much a law dealing with the coordination
and
determination
of
standards in institutions for higher
education giving the chief Entry 66 of the
List III of VIIth Schedule and, as such, the
Union
Legislature
did
hold
the
competence
for
enacting
the
said
provisions.

35. The State Government pursuant
to the directions of this Court in Surendra
Kumar Gupta's case (supra), has issued
direction to consider the candidature of
the persons holding B.Ed. degree from the
duly constituted Universities in the State
of Jammu & Kashmir. We do not find any
infirmity in the said Circular, as the same
has been issued in pursuance of the
directions of this Court. The view taken by
this Court in Surendra Kumar Gupta's
case (supra), further finds support from
another decision delivered by Hon'ble Mr.
Justice P.P. Naolekar (as his Lordship
then was) dated 10.4.2002 rendered in
S.B. Civil Writ Petition No. 96/2000. We
are in complete agreement with the view
expressed in Surendra Kumar Gupta's
case (supra). Learned Single Judge has
committed apparent error in directing to
exclude the candidates who have obtained
B.Ed. degree from the Universities
situated in the State of Jammu &
Kashmir. The part of the judgment in that
regard deserves to be quashed.

36. Before parting with, we make it
clear that keeping in view the standing
practice in vogue since long following the
Rules of 1971, we have not disturbed the
selections but it would be just and fair for
the State Government and its authorities
to give a fresh look to the relevant rules
before the next selection, particularly the
issues raised in the instant petitions. We
have
adopted
the
course
of
noninterference, as the decision in the instant
case is not going to adversely affect any
of the appellants.

37. Consequently, the group of
Special Appeals are partly allowed. The
impugned judgment dt. 4.11.2004 of the
learned Single Judge is modified. The
direction to exclude the candidates from
1 All] Smt. Sadhana Singh V. State of U.P. and others
289
consideration on the post of Teacher
Gr.II/Senior Teachers, who have obtained
B.Ed. degree from the Universities in the
State of Jammu & Kashmir, is set aside.
The judgment under appeal stands
modified to that extent only. No order as
to costs."

11. Shri S.G. Hasnain, AAG
appearing for the State of U.P. has
justified the exclusion of the candidate on
the ground that after enforcement of
NCTE Act the degree obtained from
another
University,
which
is
not
recognized by NCTE could not be
considered and that if the Court will
interfere, the notifications for recruitment
will be affected and that large number of
candidates, who have obtained B.Ed. from
Jammu and Kashmir University and were
excluded from the selection will be
deprived of their rights in the selection.

12. We have carefully considered
the submissions and agree with the view
of learned Single Judge in Kamlesh
Kumar's case that the candidates, who
have obtained B.Ed. degree from the State
of Jammu and Kashmir to which NCTE
Act do not form a class to be excluded
from selection. The reasoning is not in
consonance with constitutional scheme of
equality. Jammu and Kashmir is an
integral part of Union of India. It has been
given special status so far as laws relating
to the citizens of Jammu and Kashmir are
concerned. The historical reasons for
which special status was given has been
considered in several judgments of the
Supreme Court. The citizens of Jammu
and Kashmir cannot be excluded from
consideration for employment in the other
States of the country on the ground that
some of the Act such as NCTE Act does
not have application in the State of
Jammu and Kashmir. Exclusion of such
candidates cannot be treated to be valid
classification under Art.14 and 16 of the
Constitution of India to support the
argument that such class is exclusive class
and could be excluded from consideration
for Special BTC Training Course.

13. Special BTC training course is
designed to equip those candidates, who
have B.Ed. degrees to take teachers
training for primary classes for the
purposes of employment. It is an
employment oriented course. It is not
denied that all the successful candidates,
who have passed BTC examination are
employed in Primary Schools funded by
the Central Government under Serv
Shiksha Abhiyan. The exclusion of some
of the candidates, who have taken degrees
from the universities situate in the State to
which NCTE Act does not apply would
be a hostile and invidious discrimination
to them. Such students cannot be put at
fault on account of special status given to
the State of Jammu and Kashmir.

14. The reasoning given by the Full
Bench in Bhupendra Nath Triapthi is
squarely applicable to the case. If the
students having obtained B.Ed. degrees in
the period, when NCTE Act was not
enforced or where institutions have
applied but the recognition was not given
can be considered for selection in Special
BTC course, the exclusion of those
candidates, who have obtained degrees
from the States to which NCTE Act does
not apply, would be discriminatory and
violative of right to equality under Art.14
and 16 of the Constitution of India.

15. The special appeal is allowed.
The judgment of learned Single Judge
dated 5.11.2009 is set aside. The petitioner
290 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
will not be treated to be disqualified and
will be considered along with the
candidates of Special BTC Course 2007
subject to her comparative merit with other
candidates.

16. We may add caveat here that only
those candidates having degrees from State
of Jammu and Kashmir will be considered
qualified, who have obtained these degrees
from the universities recognized by the
University Grants Commission.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.03.2011

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 1719 of 2009

Smt. Dayawati and others
 ...Petitioner
Versus
Deputy Director of Consolidation,
Baghpat and others ...Respondents

Counsel for the Petitioner:
S.K. Tyagi

Counsel for the Respondents:
Sri A. N. Srivastava
Sri Sandeep Kumar
Sri Ashish Kumar
Sri Rahul Mishra
Sri Vivek Chaudhary
C.S.C.

U.P. Consolidation of Holdings Act-1953,
Section-53-B-applicability
of
the
provision of section 5 of limitation ActD.D.C. by Detail order-disclosed reason
for non condoling delay-petitioner in
very crytic casual manner without any
detail-disclosed
the
source
of
knowledge-held-righty
refused
to
condone
delay.
Court
declined
to
interfere.
Held: Para 6

It
is
therefore
obvious
that
the
provisions of Section 5 of Limitation Act
with all its necessary accessories can be
invoked
in
proceedings
before
the
Consolidation Authorities provided there
is a plausible and valid explanation
attributed for having arrived at a delayed
point of time. The affidavit which has
been filed by the petitioners in support
of the delay condonation application is
absolutely casual, cryptic and without
any details. The Deputy Director of
Consolidation
has
therefore
rightly
recorded a finding that in the absence of
any plausible explanation or any cogent
reason having been offered in not having
arrived before the Court in time, there
was no occasion to condone the delay.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard learned counsel for the
petitioner and the learned counsel for the
contesting respondents.

2. The issue is very short, as the
matter has now to be examined in the
light of the earlier judgment of this Court
dated 10th September 2007 in writ
petition No. 16761 of 2007. The judgment
being precise and which also details the
facts necessary for adjudication, is being
gainfully reproduced here under:

"Hon'ble Janardan Sahai,J.

Counsel for the parties agree that the
writ petition may be disposed of finally.

The plot in dispute is 2941. It was
recorded in the basic year in the name of
late Indra Raj father of the petitioners
and late Hari Singh father of the
respondents 3, 4 and 5. Objections under
Section 9 of the U.P. Consolidation of
Holdings Act were filed by Indra Raj. The