# State of U.P. and others v. Smt. Rosalia Minj Sohanta and another

- **Citation:** (2003) 2 ILRA 262
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-05-02
- **Case number:** Special Appeal No. 664 of 2002
- **Bench:** Tarun Chatterjee, C.J. R.K. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-smt-rosalia-minj-sohanta-and-another-40082
- **Pages:** 5

## Headnote

Sri R.K. Ojha

U.P.
Recognized
Basic
Schools
(Recruitment and conditions of service of
teacher and other conditions) Rules
1975- Rule 19 (i) Requisites qualification
for Assistant Teacher in Primary School-
BTC- provided in 1995 -Respondents
was appointed 1973 having diploma
from
Pune
University-
G.O.
dated
21.10.94- provides to give salary as
trained teacher who have completed 10
years as untrained teachers- whether
such teacher was entitled to treated as
trained teacher ? held- yes- when the
appointed made- Rule 1975 was not
enforced-
completed
10
years
long
service- entitled for every consequential
benefits like Regular teachers.

Held- Para 7

When
the
respondent
no.
1
was
appointed i.e. on 17.7.1973, the 1975
Rules was not in force. Thus, the
qualification prescribed by the Board for
appointment on the post of assistant
teachers in a recognised school was not
in force at the time when the respondent
no.
1
was
appointed.
The
learned
standing counsel has not placed any
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2All] State of U.P. and others V. Smt. Rosalia Minj Sohanta and another
263
material on record before us, to show as
to what was the qualification prescribed
for appointment on the post of Assistant
teacher in recognised schools in the year
1973 when the respondent no. 1 was
appointed. Thus, it can be presumed
that the Diploma in Education given by
the recognised University was treated as
equivalent training for appointment on
the post of Assistant teacher in the
recognised Basic school. In this view of
the matter when the respondent no. 1
was appointed as assistant teacher on
17.7.1973 and had been paid salary as
trained teacher right up till 1992 i.e. for
19 years, the presumption is that she
was duly qualified and had rightly been
appointed on the post of assistant
teacher in trained grade. Moreover, we
find that the State Government has vide
Government order dated 21.10.1994
provided the benefit of trained grade to
those untrained teachers, who have also
completed more than 10 years of service.
In any event the respondent no. 1 was
entitled for being treated as a trained
teacher and payment of salary as trained
teacher.
Case law referred:
1998 (3) SCC-146, 2001 (2) UPLBEC-1685
1998 (8) SCC-326

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
262
said to have any application to the facts
and circumstances of this case, as in that
decision, the candidate did not at all join
the post and, therefore, it was open for the
next man to come in the field of eligibility
in view of sub rule 5 of Rule 8 of the
rules. As we have discussed already in the
present case, on the other hand, Satya Pal
Singh, admittedly joined the institution as
Principal and worked for about 6 months
in the said institution. Therefore, the
decision cited on behalf of the writ
petitioner- respondent no. 3 is not, at all,
applicable to the facts and circumstances
of the instant case.

No other point was raised by the
learned counsel for the parties.

14. In view of our discussions made
above, it is not necessary for us to deal
with the decision of the Supreme Court
relied on by the learned counsel for the
respondent. However, the decision of the
Supreme Court as referred to above, in
our view, is also of no help to the
appellant.

15. For the reasons aforesaid, this
special appeal deserves to be allowed, the
order of the learned Judge, under appeal,
is liable to be set aside and we hold that
the private respondent is not entitled to be
appointed as Principal of the institution
from the said panel.

16. Accordingly the special is
allowed. The impugned order, under
appeal, is set aside and the writ petition
stands dismissed. However, there will be
no order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 2.5.2003

BEFORE
THE HON'BLE TARUN CHATTERJEE, C.J.
THE HON'BLE R.K. AGARWAL, J.

Special Appeal No. 664 of 2002

State of U.P. and others ...Respondents
Versus
Smt. Rosalia Minj Sohanta and another

 ...Petitioner

Counsel for the Petitioners:
Sri Ran Vijay Sigh
S.C.

Counsel for the Respondents:
Sri R.K. Ojha

U.P.
Recognized
Basic
Schools
(Recruitment and conditions of service of
teacher and other conditions) Rules
1975- Rule 19 (i) Requisites qualification
for Assistant Teacher in Primary School-
BTC- provided in 1995 -Respondents
was appointed 1973 having diploma
from
Pune
University-
G.O.
dated
21.10.94- provides to give salary as
trained teacher who have completed 10
years as untrained teachers- whether
such teacher was entitled to treated as
trained teacher ? held- yes- when the
appointed made- Rule 1975 was not
enforced-
completed
10
years
long
service- entitled for every consequential
benefits like Regular teachers.

Held- Para 7

When
the
respondent
no.
1
was
appointed i.e. on 17.7.1973, the 1975
Rules was not in force. Thus, the
qualification prescribed by the Board for
appointment on the post of assistant
teachers in a recognised school was not
in force at the time when the respondent
no.
1
was
appointed.
The
learned
standing counsel has not placed any
http://www.allahabadhighcourt.nic.in
2All] State of U.P. and others V. Smt. Rosalia Minj Sohanta and another
263
material on record before us, to show as
to what was the qualification prescribed
for appointment on the post of Assistant
teacher in recognised schools in the year
1973 when the respondent no. 1 was
appointed. Thus, it can be presumed
that the Diploma in Education given by
the recognised University was treated as
equivalent training for appointment on
the post of Assistant teacher in the
recognised Basic school. In this view of
the matter when the respondent no. 1
was appointed as assistant teacher on
17.7.1973 and had been paid salary as
trained teacher right up till 1992 i.e. for
19 years, the presumption is that she
was duly qualified and had rightly been
appointed on the post of assistant
teacher in trained grade. Moreover, we
find that the State Government has vide
Government order dated 21.10.1994
provided the benefit of trained grade to
those untrained teachers, who have also
completed more than 10 years of service.
In any event the respondent no. 1 was
entitled for being treated as a trained
teacher and payment of salary as trained
teacher.
Case law referred:
1998 (3) SCC-146, 2001 (2) UPLBEC-1685
1998 (8) SCC-326

(Delivered by Hon'ble R.K. Agarwal, J.)

1. The present special appeal has
been filed against the judgment- dated
16.2.2000 passed by the learned Judge in
civil misc. writ petition no. 1303 of 1993
whereby the learned Judge, had disposed
of the writ petition quashing the order
dated 8.10.1992 contained in annexure 8
to the writ petition and directing the
authorities to treat the petitioner as trained
teacher in terms of the Government order
dated 21.10.1994 and pay the salary as
trained teacher in the revised scale
alongwith arrears.

2. Briefly stated the facts giving rise
to the present special appeal are that the
respondent no. 1 writ petitioner was
appointed on 17.7.1973 as Assistant
Teacher in Primary school namely Bal
Vidyalaya
Nayapura,
Stanely
Road,
Allahabad (hereinafter referred to as the
school). She was given trained grade as
she was having certificate of diploma in
Education from the Pune University.
Sometimes
in
February
1992
the
authorities
found
that
the
diploma
possessed by the respondent no. 1 was not
recognised as equivalent to B.T.C. and
since B.T.C. was the only training after
obtaining of which a person becomes
eligible for appointment as Assistant
teacher in primary school, therefore, vide
order dated 8.10.1992 she was designated
as untrained teacher and ordered to draw
salary
as
untrained
teacher.
The
respondent no. 1 challenged the said order
by filing a writ petition in this court under
Article 226 of the constitution of India
which had been finally disposed off by
the learned Judge vide order dated
16.2.2000 which is impugned in this
Special Appeal.

We have heard Sri Ran Vijay Singh
learned standing counsel and Sri R.K.
Ojha learned counsel for the respondent
no. 1.

3. The learned standing counsel
submitted that on the date when the
respondent no. 1 was appointed as trained
teacher in primary school on 17.7.1973,
she did not posses the requisite training
i.e. B.T.C. and, therefore, she was not
eligible
and
could
not
have
been
appointed as a trained teacher. According
to him, the certificate of Diploma in
Education from Pune University is not
recognised
as
equivalent
to
B.T.C.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
264
Training by the Government of Uttar
Pradesh, and thus, no benefit can be
derived from the said certificate. He
further submitted that the respondent no.
1 has rightly been granted salary treating
her to be as untrained teacher and the
learned Judge was not justified in
directing payment of salary as trained
teacher to the respondent no. 1. He relied
upon the decision of Hon. Supreme Court
in the case of Union of India and others
Vs. Ravi Shanker and others, 1998 (3)
SCC 146 and decision of a Division
Bench of this Court in the case of State of
U.P. and others vs. Param Hansh Singh
(2001) 2 UPLBEC 1685.

4. According to him, the government
order 21.10.1994 did not have any
retrospective
effect
and
all
those
untrained teachers who have completed
10 years' service or were going to attain
the age of superannuation within 2 years,
were to be treated as trained teachers after
a
committee
constituted
under
the
aforesaid Government order examined
their cases. Thus, the single Judge was not
justified in directing the respondent no. 1
to be treated as trained Teacher bye-
passing the Government order dated
21.10.1994. He further submitted that the
learned Judge had granted the relief,
which was not even claimed by the
respondent no. 1. He relied upon the
decision of Hon. Supreme Court in the
case of Chandigarh Administration vs.
Laxman Roller Flour Mills Pvt. Ltd.
(1998) 8 SCC 326.

5. Sri R.K. Ojha learned counsel for
the respondent no. 1, however, submitted
that the respondent no. 1 was appointed as
Assistant Teacher in the School on
17.7.1973. She possessed the certificate of
Diploma
in
Education
from
Pune
University,
which
is
a
recognised
University
by
he
University
Grant
Commission and, therefore, its Diploma is
recognised all over India. He further
submitted that as far back in the year
1986, a doubt was expressed on the
question as to whether the diploma
granted by the Pune University is
recognised or not and the Director of
Education, UP Allahabad vide letter dated
21.8.1989 had informed the Principal of
the School reliving upon the Government
order dated 29.8.1966 that any degree or
diploma given by the University in India
which is a recognised University by the
University
Grant
Commission,
is
recognised for appointment in the State.
Thus, he submitted that the respondent no.
1 had rightly been appointed as a trained
teacher in the School and, therefore,
treating her as untrained teacher was
wholly illegal. In any event, he submitted
that in view of the Government order
dated 21.10.1994 which provided for
treating those untrained Assistant Teacher
who had been working for more than 10
years to be trained teacher, the judgement
and order dated 16.2.2000 calls for no
interference. He relied upon the decision
in the case of Smt. Santosh Yadav vs.
State of Haryana reported in 1997 (1)
UPLBEC 259.

6. Having heard the learned counsel
for the parties, we find that it is not in
dispute
that
the
respondent
no.
1
possesses certificate of Diploma in
Education given by the Pune University.
She was appointed as Assistant Teacher in
trained grade in school on 17.7.1973 and
had been paid salary as trained teacher
since then. In the year 1986 on some
doubt being expressed regarding her
training i.e. certificate of Diploma in
Education
awarded
by
the
Pune
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2All] State of U.P. and others V. Smt. Rosalia Minj Sohanta and another
265
University, the Director of Education had
clarified the matter that all the degrees
and diploma awarded by the Universities
recognised by the University Grant
Commission,
is
recognised
for
the
purposes of service in the State of UP.
Thereafter,
the
matter
rested
there.
However, in month of February 1992,
when the salary in the revised pay scale
was to be fixed and certificates were
examined, the question about training
again cropped up and authorities held that
the Diploma in Education held by the
respondent no. 1 is not equivalent to
B.T.C. training. In this background of the
matter, the question is as to whether the
respondent no. 1 was entitled to be treated
as trained teacher or not ?

7. To regulate the basic education in
the State of U.P., the U.P. Basic
Education Act 1972 (hereinafter referred
to as the Act) has been enacted. Under
section 19 (1) of the Act, the Governor of
U.P. framed Rules known as U.P.
Recognised Basic Schools (Recruitment
and Condition of Service of teachers and
other conditions) Rules 1975 (hereinafter
referred to as the 1975 Rules). Rule 3 of
the 1975 Rules provided that every
recognised school shall be bound by the
conditions and restrictions hereinafter
specified. Rule 9 relates to appointment of
teachers which provides that no person
shall be appointed as teacher or employee
in any recognised school unless he
possesses
such
qualification
as
are
specified in this behalf by the Board and
for whose appointment the previous
approval of the Basic Shiksha Adhikari
has been obtained in writing. These Rules
came into force on 1.7.1975. In exercise
of powers under Rule 9 of the 1975.
Rules, the Board prescribed the necessary
qualification for appointment on the post
of
Assistant
teachers in recognised
primary schools. When the respondent no.
1 was appointed i.e. on 17.7.1973, the
1975 Rules was not in force. Thus, the
qualification prescribed by the Board for
appointment on the post of assistant
teachers in a recognised school was not in
force at the time when the respondent no.
1 was appointed. The learned standing
counsel has not placed any material on
record before us, to show as to what was
the
qualification
prescribed
for
appointment on the post of Assistant
teacher in recognised schools in the year
1973 when the respondent no. 1 was
appointed. Thus, it can be presumed that
the Diploma in Education given by the
recognised University was treated as
equivalent training for appointment on the
post of Assistant teacher in the recognised
Basic school. In this view of the matter
when the respondent no. 1 was appointed
as assistant teacher on 17.7.1973 and had
been paid salary as trained teacher right
up till 1992 i.e. for 19 years, the
presumption is that she was duly qualified
and had rightly been appointed on the
post of assistant teacher in trained grade.
Moreover,
we
find
that
the
State
Government has vide Government order
dated 21.10.1994 provided the benefit of
trained grade to those untrained teachers,
who have also completed more than 10
years of service. In any event the
respondent no. 1 was entitled for being
treated as a trained teacher and payment
of salary as trained teacher.

8. In the case of Union of India and
another vs. Ravi Shanker and another
(supra), the Apex court has held that the
degree of Vaidya Visharad awarded by
Hindi Sahitya Sammelan, cannot be held
to be a recognised qualification under the
Recruitment Rules. The said decision is of
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
266
no assistance to the appellants in as much
as in the present case, there is no material
on record to show as to what was the
prescribed
qualification
for
the
appointment of Assistant Teacher in
primary school in the year 1973. The
respondent no. 1 had been appointed on
the said post in the year 1973 and she
continued to work till 1992 as trained
teacher and the salary in that grade had
also been paid, thus, it cannot be said that
she
did
not
possess
the
requisite
qualifications

9. In the case of state of U.P. and
others vs. Param Hansh Singh (supra) this
Court has held that the Rule has fixed the
minimum height and the measurement of
chest (expanded and unexpanded) and
there is no scope for any kind of variation
in the same. If a candidate is unable to
meet the prescribed standard even by a
slight margin , he has to be held as
unqualified.

10. In the present case we find that
the
prescribed
qualification
for
appointment on the post of Assistant
teacher for the first time came into force
on 1.7.1975 whereas appointment had
been made on 17.7.1973. In the absence
of any prescribed qualification, there was
no illegality in the appointment of the
respondent no. 1.

11. So far as the contention that the
relief which was not prayed for, was
allowed
by
the
learned
Judge
is
concerned, we find that the appointment
of the respondent no. 1 was perfectly
valid and justified and, thus, this question
does not arise.

12. In view of foregoing discussions,
we do not find any merit in this Special
Appeal. The special appeal is dismissed.

13. However, the parties shall bear
their own costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.4.2003

BEFORE
THE HON'BLE TARUN CHATTERJEE, C.J.
THE HON'BLE VINEET SARAN, J.

Contempt Appeal No. 1673 of 2003

Sri T. George Joseph, Principal Secretary,
Tax Registration Government of U.P.,
Lucknow

...Appellant
Versus
Vijay Kumar Srivastava ...Respondent

Counsel for the Appellant:
Sri Upadhyay
Sri R. Vijai
S.C.

Counsel for the Respondent:
Sri Satish Chaturvedi
A.G.A.

Contempt of courts Act- Section 19-
Appeal against order summoning the
appellant to produce the evidence in
defence for non compliance of order
passed by the single Judge whether is
appeal
against
interfere
order
maintainable
?
held-
yes-
appeal
admitted- appellant to more vacation of
the order- impugned order stayed for
period of 3 months.

Held- Para 11

Order decides some disputes raised
before the Court by the contemnor
asking it to drop the proceedings on one