# The State of U.P. & Ors v. Ankita Saxena & Anr

- **Citation:** (2022) 10 ILRA 1073
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-17
- **Case number:** Special Appeal Defective No. 324 of 2022
- **Bench:** Rajesh Bindal, C.J. J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-ors-v-ankita-saxena-anr-47668
- **Pages:** 8

## Headnote

A. Service Law - Appointment - Salary -
Uttar Pradesh Recognized Basic Schools
(Junior High Schools) Recruitment and
Conditions of Service of Teachers) Rules,
1978 - Rule 4 - National Council for
Teacher Education Act, 1993 - Section
12(d) read with Section 12A - Right of
Children
to
Free
and
Compulsory
Education Act, 2009 - Section 23 - Acting
on the result drawn up by the Selection
Committee, a proposal dated 08.07.2016 to
obtain
approval
for
the
petitioner's
appointment as the Headmistress of the
institution, was forwarded to the District Basic
Education Officer, Rampur, by the Manager of
the institution. The District Basic Education
Officer, Rampur, by means of his order dated
26.07.2016, declined the proposal to approve
the writ petitioner's appointment on the
ground that she does not hold the certificate
of TET (Junior High School Level), an
essential educational qualification for the
post. (Para 5)

The writ petitioner was appointed as an
assistant teacher with a recognised school
on 01.07.2009 i.e. prior to amendment in
the 1978 Rules w.e.f. 05.12.2012. The writ
petitioner was, thus, appointed as an
assistant teacher with a recognised
school at a time when the 1978 Rules
had not been amended to bring in the
qualification of passing the TET as
essential for an assistant teacher. (Para
16)

B. Central Law prevailing over State
Law - Assuming that the National Council
for Teacher Education (NCTE) Guidelines
dated 11.02.2011, issued u/s 12(d) r/w
S.12A of the National Council for Teacher
Education Act, 1993 and S.23 of the Right
of
Children
to
Free
and
Compulsory
Education Act, 2009, prevail over the 1978
Rules as they stood prior to the Sixth
Amendment w.e.f. 05.12.2012, for reason
of the Central law prevailing over the State
law on a subject falling in the concurrent
list, as held in Om Prakash Tripathi's case
(infra), the writ petitioner was appointed as
an assistant teacher in a recognized school
on 01.07.2009. At that time, there were no
NCTE Guidelines at variance with the 1978
Rules. Thus, at the time that the writ
petitioner was appointed as an assistant
teacher, there was no requirement of
passing the TET. The writ petitioner,
therefore,
was
validly
appointed
an
assistant teacher and at the time of
consideration of her candidature for the
post
of
Headmistress,
neither
the
amendment made to the 1978 Rule
w.e.f.
05.12.2012
nor
the
NCTE
Guidelines, that came after the writ
petitioner's
appointment
as
an
assistant
teacher,
can
be
read
retrospectively
to
render
her
appointment as an assistant teacher a
nullity.

Her experience as such, in recognised
schools, qualifies her for the post of a
headmistress under the 1978 Rules. This is
particularly so, inasmuch as there is no
requirement for a headmistress as
such, passing the TET under the 1978
Rules. No other provision has been brought
to our notice, which may directly require a
headmistress of a Junior High School to
pass the TET for the purpose of maintaining
her candidature as such. (Para 18)

Special appeal dismissed. (E-4)

Precedent followed:

## Text

10 All. The State of U.P. & Ors. Vs. Ankit Saxena & Anr.
1073
petitioner
in
making
his
claim
for
compassionate appointment had to wait for
two decisive events, to wit, attaining the age
of majority and completing his education. It
is not disputed that for a compassionate
appointment, it is not the age of majority
alone that entitles one for consideration. The
necessary educational qualification too have
been acquired. No doubt, the two inquiry
reports dated July 22, 2014 and October 21,
2016 do not indicate what educational
qualification the writ petitioner acquired and
on what date after which he applied, a little
sensitive handling of the claim by the
Secretary would have led him to find out
when the writ petitioner earned his essential
eligibility
educational
qualifications.
Perhaps, that would explain the delay that
the Secretary has numerically counted to
deny the writ petitioner relaxation in the
prescribed period of time for making a
claim.
We
must
observe
that
the
circumstances of the family that have come
on record show that the deceased has an old
mother, the widow and a daughter, of which
this Court took due note in the judgment and
order dated August 20, 2016 passed earlier,
which has not at all been considered by the
Secretary. There is a remark in the judgment
dated August 20, 2016 that there are three
female
dependents
of
the
deceased,
including his old mother and the family have
no other source of income, except the
meager pension of ₹10,346/-.

23. We must remark that in these
circumstances, to blindfoldedly infer that
the family have tided over the financial
crisis within a period of 5 years, acting on
the statutory presumption, is to defeat the
wisdom that the proviso carries. Also, the
impugned order, we must observe, has been
written in utter disregard of the order of
remand passed by this Court dated August
20, 2016, which we do not appreciate.

24. We are satisfied for all the reasons
indicated above that the learned Single Judge
was in error in approving the Secretary's
order, impugned in the writ petition, rejecting
the writ petitioner's claim for compassionate
appointment.

25. This Special Appeal, accordingly,
succeeds and is allowed. The impugned
judgment and order dated December 5, 2018
passed by the learned Single Judge in Writ -
A No.751 of 2017 is hereby set aside and
reversed. The writ petition is allowed. The
impugned order dated December 7, 2016
passed by the Secretary, Department of
Home
Affairs
(Police),
Anubhag-10,
Government of U.P., Lucknow is hereby
quashed.
A
mandamus
is
issued
to
respondent no.1 to consider the writ
petitioner's
claim
for
compassionate
appointment afresh in accordance with the
directions in this judgment within a period of
two months of receipt of a copy of this
judgment. The writ petitioner shall be at
liberty to file an additional memorandum
explaining the delay, annexing therewith such
evidence on which he relies to seek relaxation
in the matter of limitation under the proviso
to Rule 5(1) of the 1974 Rules.
----------
(2022) 10 ILRA 1073
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.08.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Special Appeal Defective No. 324 of 2022

The State of U.P. & Ors. ...Appellants
Versus
Ankita Saxena & Anr. ...Respondents

Counsel for the Appellants:
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Ramanand Pandey, Additional Chief
Standing Counsel

Counsel for the Respondents:
Sri Vikrant Pandey

A. Service Law - Appointment - Salary -
Uttar Pradesh Recognized Basic Schools
(Junior High Schools) Recruitment and
Conditions of Service of Teachers) Rules,
1978 - Rule 4 - National Council for
Teacher Education Act, 1993 - Section
12(d) read with Section 12A - Right of
Children
to
Free
and
Compulsory
Education Act, 2009 - Section 23 - Acting
on the result drawn up by the Selection
Committee, a proposal dated 08.07.2016 to
obtain
approval
for
the
petitioner's
appointment as the Headmistress of the
institution, was forwarded to the District Basic
Education Officer, Rampur, by the Manager of
the institution. The District Basic Education
Officer, Rampur, by means of his order dated
26.07.2016, declined the proposal to approve
the writ petitioner's appointment on the
ground that she does not hold the certificate
of TET (Junior High School Level), an
essential educational qualification for the
post. (Para 5)

The writ petitioner was appointed as an
assistant teacher with a recognised school
on 01.07.2009 i.e. prior to amendment in
the 1978 Rules w.e.f. 05.12.2012. The writ
petitioner was, thus, appointed as an
assistant teacher with a recognised
school at a time when the 1978 Rules
had not been amended to bring in the
qualification of passing the TET as
essential for an assistant teacher. (Para
16)

B. Central Law prevailing over State
Law - Assuming that the National Council
for Teacher Education (NCTE) Guidelines
dated 11.02.2011, issued u/s 12(d) r/w
S.12A of the National Council for Teacher
Education Act, 1993 and S.23 of the Right
of
Children
to
Free
and
Compulsory
Education Act, 2009, prevail over the 1978
Rules as they stood prior to the Sixth
Amendment w.e.f. 05.12.2012, for reason
of the Central law prevailing over the State
law on a subject falling in the concurrent
list, as held in Om Prakash Tripathi's case
(infra), the writ petitioner was appointed as
an assistant teacher in a recognized school
on 01.07.2009. At that time, there were no
NCTE Guidelines at variance with the 1978
Rules. Thus, at the time that the writ
petitioner was appointed as an assistant
teacher, there was no requirement of
passing the TET. The writ petitioner,
therefore,
was
validly
appointed
an
assistant teacher and at the time of
consideration of her candidature for the
post
of
Headmistress,
neither
the
amendment made to the 1978 Rule
w.e.f.
05.12.2012
nor
the
NCTE
Guidelines, that came after the writ
petitioner's
appointment
as
an
assistant
teacher,
can
be
read
retrospectively
to
render
her
appointment as an assistant teacher a
nullity.

Her experience as such, in recognised
schools, qualifies her for the post of a
headmistress under the 1978 Rules. This is
particularly so, inasmuch as there is no
requirement for a headmistress as
such, passing the TET under the 1978
Rules. No other provision has been brought
to our notice, which may directly require a
headmistress of a Junior High School to
pass the TET for the purpose of maintaining
her candidature as such. (Para 18)

Special appeal dismissed. (E-4)

Precedent followed:

1. Om Prakash Tripathi Vs St. of U.P. Through
Secretary, Basic Education & ors., S.S. No.
22454 of 2018, decided on 22.12.2019 (Para
17)

Present
special
appeal
is
against
judgment and order dated 01.04.2022,
passed by Learned Single Judge, in Civil
Misc. WP No. 10041/2017.

(Delivered by Hon'ble Rajesh Bindal, C.J.
&
10 All. The State of U.P. & Ors. Vs. Ankit Saxena & Anr.
1075
Hon'ble J.J. Munir, J.)

1. Heard Mr. Ramanand Pandey,
learned Additional Chief Standing Counsel
appearing on behalf of the appellants and
Mr. Vikrant Pandey, learned Advocate
appearing on behalf of the respondent.

2. There is a delay of 95 days reported
by the Stamp Reporter. Upon a perusal of
the affidavit filed in support of the delay
condonation application, we find that there
is sufficient cause made out to condone the
delay. The delay in filing the appeal is
condoned.

3. The application is allowed.

4. This appeal has been preferred by the
five respondents-the State respondents of
Writ-A No.10041 of 2017, questioning the
judgment and order of the learned Single
Judge dated 1st April, 2022, allowing the writ
petition.

5. The writ petitioner is respondent
No.1 to this appeal. She will hereinafter be
called as ''the writ petitioner'. The Manager,
Public Balika Junior High School, Rampur,
District Rampur sought and was granted prior
approval by the District Basic Education
Officer, Rampur, the fourth appellant here,
permitting the institution aforesaid to initiate
the process to recruit, select and appoint a
suitable person as the Headmistress of the
institution. Permission for recruitment of two
Assistant Teachers was also sought and
granted. Based on the permission granted by
the District Basic Education Officer, the
Manager of the Public Balika Junior High
School, Civil Lines, Rampur (for short, ''the
institution') issued an advertisement dated
21.01.2016, published in the Hindi Daily
''Hindustan', issue dated 22.01.2016 and also
in the ''Shah Times, Rampur', issue dated
22nd January, 2016. The advertisement
indicated personnel eligibility qualifications
for the post of Headmistress as the candidate
being a woman, who should have attained the
age of 30 years as on 1st July, 2016. The
minimum education and experience required
for the eligibility was indicated to the effect
that the candidate should be a trained
graduate with a minimum of five years
teaching experience in a recognized school.
There was no mention in this advertisement
about the candidate being required to possess
a certificate of passing the Teachers
Eligibility Test (for short, ''the TET') as an
essential qualification to maintain a valid
candidature. The writ petitioner is admittedly
a trained graduate with five years of teaching
experience in a recognized school. The writ
petitioner was called for interview for the
post of Headmistress, held on 05.07.2016. It
is pleaded in the writ petition that out of ten
candidates, who participated in the interview,
the writ petitioner secured the highest marks
and was ranked at the first place. Acting on
the result drawn up by the Selection
Committee, a proposal dated 08.07.2016 to
obtain
approval
for
the
petitioner's
appointment as the Headmistress of the
institution, was forwarded to the District
Basic Education Officer, Rampur, appellant
no.5, by the Manager of the institution. A
copy of the proposal is on record as
Annexure No.8 to the writ petition. The
District Basic Education Officer, Rampur, by
means of his order dated 26.07.2016,
declined the proposal to approve the writ
petitioner's appointment on the ground that
she does not hold the certificate of TET
(Junior High School Level), an essential
educational qualification for the post.

6. It is the absence of the aforesaid
qualification with the writ petitioner that has
become the bone of contention between
parties. The writ petitioner questioned the
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 26.07.2016 passed by the District
Basic Education Officer, Rampur, declining
the Management's proposal to appoint her as
the Headmistress, by instituting the writ
petition giving rise to this appeal. After
exchange of affidavits, the learned Single
Judge by means of the judgment and order
impugned has allowed the writ petition and
quashed the order dated 26.07.2016 passed
by the District Basic Education Officer,
Rampur. A mandamus has been issued to the
District Basic Education Officer, to grant
approval to the petitioner's selection on the
post of Headmistress of the institution within
a period of four weeks and issue her the
necessary letter of appointment. It has further
been ordered by the learned Judge that the
writ petitioner shall be paid arrears of salary
from the date approval for her appointment
was denied by the District Basic Education
Officer i.e. 26.07.2016. The arrears have been
directed to be paid within a period of two
months, after the issue of her appointment
letter. It has also been ordered that in case the
arrears of salary are not paid to the writ
petitioner within the time provided by the
learned Judge, simple interest at the rate of
6% p.a. would also be payable to the writ
petition till actual payment is made.

7. Aggrieved by the aforesaid judgment
and order passed by the learned Single Judge,
the State-respondents have appealed under
Chapter VIII Rule 5 of the Rules of the
Court.

8. Heard Mr. Ramanand Pandey,
learned Additional Chief Standing Counsel
appearing on behalf of the appellants and Mr.
Vikrant Pandey, learned Advocate appearing
on behalf of the writ petitioner.

9. It is argued by the learned
Additional
Chief
Standing
Counsel
appearing for the State that the educational
qualification of passing the TET, conducted
by the Government of Uttar Pradesh or by
the Government of India, is an essential
qualification
for
appointment
as
an
assistant teacher under Rule 4 of the Uttar
Pradesh Recognised Basic Schools (Junior
High
Schools)
(Recruitment
and
Conditions of Service of Teachers) Rules,
1978 (for short, 'the 1978 Rules'). It is
submitted with much emphasis by Mr.
Ramanand Pandey, that the minimum
qualification for appointment on the post of
Headmaster/ Headmistress under Rule 4(2)
of the 1978 Rules is a degree from a
recognized university or an equivalent
examination recognized as such, besides
qualification
of
passing
a
Teachers
Training Court, as specified in the Rule. In
addition, the essential qualification also
includes five years teaching experience in a
recognized school. Carrying the submission
further, it is urged on behalf of the State
that the advertisement issued by the
institution was not in accordance with the
Government
Orders,
departmental
instructions and the provisions of the 1978
Rules,
as
amended
by
the
Sixth
Amendment Rules, 2012. It is, therefore,
argued on behalf of the appellants that in
order to qualify for the post of a
headmistress, the five years teaching
experience postulated as an assistant
teacher would mean experience earned as
an
assistant
teacher,
possessing
the
essential qualifications for the latter post. It
is submitted that the writ petitioner not
having passed the TET before she was
appointed as an assistant teacher, her
experience of five years teaching is a
nullity. It would not qualify her for the post
of Headmistress under Rule 4(2) of the
1978 Rules.

10. The submission of the learned
Additional Chief Standing Counsel goes as
10 All. The State of U.P. & Ors. Vs. Ankit Saxena & Anr.
1077
far as that the qualification of passing the
TET being essential for an assistant
teacher, it is a fortiori essential for a
headmistress, because an assistant teacher
of five years experience would postulate
the candidate possessing qualification of
having passed the TET. It is argued that the
learned Single Judge has gone wrong in
holding that passing the TET is not one of
the essential qualifications for the post of a
headmistress, stipulated by Rule 4(2) of the
1978 Rules.

11. On the other hand, Mr. Vikrant
Pandey, the learned Counsel appearing for
the writ petitioner, supported the impugned
order and says that the writ petitioner was
appointed as an assistant teacher in
accordance with the 1978 Rules on
01.07.2009 and functioned as such up to
30.11.2012 in Smt. Shanti Devi Junior
High School, Bareilly, and again earned
two
years
teaching
experience
from
01.07.2013 to 03.12.2015 in Smt. Shanti
Devi Children Academy, Bareilly. It is
urged that the Sixth Amendment to the
1978
Rules
were
introduced
w.e.f.
05.12.2012, whereas the writ petitioner was
appointed on 01.07.2009, and thereafter,
completed her experience as an assistant
teacher in two spells, exceeding five years
on the date she applied for the post of
headmistress.

12. It is emphasized that when the
writ petitioner was appointed as an
assistant teacher on 01.07.2009, there was
no requirement of passing the TET. It is for
the said reason that she was permitted to
continue as an assistant teacher even after
the amendment of the 1978 Rules by the
Sixth Amendment w.e.f. 05.12.2012. It is,
therefore, the writ petitioner's case is that in
her case, the requirement of passing the
TET would not at all be attracted. The
learned Single Judge has more or less
accepted the writ petitioner's contention
and allowed the writ petition in the terms
indicate hereinabove.

13. Upon consideration of the
submissions advanced by the learned
Counsel for parties and perusal of the
records, we are in agreement with the
conclusions reached by the learned Single
Judge. Rule 4 of the 1978 Rules are
extracted below:

"4. Minimum Qualifications.-
(1) The minimum qualifications for the
post of Assistant Teacher of recognized
school shall be a Graduation Degree from a
University recognized by U.G.C., and a
teachers training course recognized by the
State Government or U.G.C. or the Board
as follows-

1. Basic Teaching Certificate.

2. A regular B.Ed. degree from a
duly recognized institution.

3. Certificate of Teaching.

4. Junior Teaching Certificate.

5.
Hindustani
Teaching
Certificate

And

Teacher eligibility test passed
conducted by the Government of Uttar
Pradesh or by the Government of India.

(2) The minimum qualifications
for the appointment to the post of head
master of a recognized school shall be as
follows-

(a) A degree from a recognized
University or an equivalent examination
recognized as such.

(b) A teacher's training course
recognized by the State Government
U.G.C. or Board as follows-

1. Basic Teaching Certificate.

2. A regular B.Ed degree from a
duly recognized Institution.
1078 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Certificate of Teaching.

4. Junior Teaching Certificate.

5.
Hindustani
Teaching
Certificate.

(c)
Five
years
teaching
experience in a recognised schools."

14. A reading of the Rule shows that
it is nowhere prescribed as an essential
qualification
for
a
candidate
to
be
appointed a headmaster/ headmistress that
the person concerned must have passed the
TET. There is no quarrel about the fact that
the writ petitioner had earned her degree of
Bachelor of Arts from Dr. Bhimrao
Ambedkar University in the year 2003 and
a degree of Bachelor of Education from the
same University in the year 2007. She is,
thus, a trained graduate within the meaning
of Rule 4(2) of the 1978 Rules.

15. The issue is about the lack of her
qualification relating to the TET. There is
clear averment in Paragraph No.11 of the
writ petition that the writ petitioner has
teaching experience of five years from a
recognised school i.e. Smt. Shanti Devi
Junior High School, Bareilly, where she
has taught from 01.07.2009 to 30.11.2012,
and thereafter, in Smt. Shanti Devi
Children
Academy,
Bareilly
w.e.f.
01.07.2013 to 03.12.2015. Certificates of
her experience have been issued by the two
institutions, copies whereof are annexed as
Annexure No. 5 to the writ petition. These
certificates
are countersigned by the
District Basic Education Officer, Bareilly.
In the counter affidavit filed by the State/
respondent no.5 in the writ petition, the
contents of Paragraph No.11 to the writ
petition have been admitted.

16. The inexplicable conclusion on
facts, therefore, is that the writ petitioner
was appointed as an assistant teacher with a
recognised school on 01.07.2009 i.e. prior
to amendment in the 1978 Rules w.e.f.
05.12.2012. The writ petitioner was, thus,
appointed as an assistant teacher with a
recognised school at a time when the 1978
Rules had not been amended to bring in the
qualification of passing the TET as
essential for an assistant teacher.

17. A learned Single Judge of this
Court in S.S. No. 22454 of 2018, Om
Prakash Tripathi v. State of U.P.
Through Secretary, Basic Education and
others, decided on 22.12.2019, before
whom the same issue came up for
consideration, after considering the law laid
down by the Supreme Court and two Full
Benches, held:

(22) In Full Bench's judgment of
this Court in the case of Shiv Sharma and
others v. State of U.P. and others
reported 2013 (6) ADJ 310 (FB), it has
been held that Notification dated 23.8.2010
and the qualifications determined by the
NCTE would have overriding effect in so
far State Legislation Act, Rules or
Regulations are in conflict with the
notification issued by the NCTE which,
therefore, has to be ignored.

(23) The principle has also been
reiterated in the subsequent Full Bench's
decision rendered in Anand Kumar
Yadav and others v. Union of India and
others reported in 2015 (8) ADJ 338
(FB). The decision has been confirmed by
the Hon'ble Supreme Court in the case of
State of U.P. v. Anand Yadav, 2017 Vol
ADJ 173.

(24) While dealing with the
aforesaid provisions, the Hon'ble Supreme
Court has held that in the State of Uttar
Pradesh, the State Government in a clear
violation of mandate of Section 23(2),
which vests the power to relax the
10 All. The State of U.P. & Ors. Vs. Ankit Saxena & Anr.
1079
minimum qualifications is in the Central
Government has arrogated to its power
which it lacks to grant exemption from the
mandatory qualification which are laid
down by the NCTE in their application to
Shiksha Mitra in the State. Parliament has
legislated to provide, in no uncertain terms,
that any relaxation of the minimum
educational qualifications can only be made
by the Central Government.

(25) In State of U.P. v. Shiv
Kumar Pathak reported in 2017 (8) ADJ
164, the question posed before the Supreme
Court was with regard to the validity of the
decision of the State of Uttar Pradesh in
prescribing qualifications for a recruitment
of teachers at variance with the guidelines
of the National Council for Teachers
Education (NCTE) dated 11th February,
2011 under Section 12 (d) read with
Section 12 A of the National Council for
Teachers Education Act, 1993 (NCTE Act)
and Section 23 of the Right of Children to
Free and Compulsory Act Education, 2009
(RTE Act) on the ground of repugnancy of
State Law with the Central law on a subject
falling in concurrent list.

(26)
In
pursuance
to
the
Notification referred hereinabove, the State
Government has issued notification dated
27 November, 2017, whereby notifications
issued by the National Council for Teacher
Education (hereinafter referred to as
"N.C.T.E." on 23 August 2010, 29 July,
2011,
12
November
2014
and
28
November 2014, prescribing qualification
for the post of Assistant Teacher in Primary
Institutions
of
the
State
has
been
incorporated.

(27) The Full Bench of this Court
as well as the Supreme Court in the
decisions referred hereinabove leaves no
room for doubt that the competent authority
to determine the essential qualifications for
appointment of teachers in primary schools
throughout the country, is vested with the
N.C.T.E. The notification issued by the
N.C.T.E. would apply from the date, on
which the qualification was notified by the
N.C.T.E. and not from the date on which
the N.C.T.E. notifications was incorporated
in the State Act or Rules governing
appointment and selection of Primary
Teacher.

(28) In U.P. Recognized Basic
Schools
(Junior
High
Schools)
(Recruitment and Conditions of Service of
Teachers) Rules, 1978 which was added by
way
of
amendment
dated
5.12.2012
prescribing qualifications for the post of
Assistant Teachers in addition to other
qualifications. It has also been provided
that a candidate must have possessed
qualification of T.E.T.

(29) Under sub Rule (2) of Rule 4
of the Rules of 1978 it has been provided
that essential qualification of possessing
T.E.T. is must for the post of Assistant
Teacher and Rule 4 sub Rule (2) reveals
that the qualification for the post of Head
Master is that he should have the
qualification of five years of experience
from a recognized Institution as a teacher.

(30) In the present case, the
petitioner was granted appointment on the
post of Assistant Teacher in Ram Sawak
Inter College, Dhamoha, Babaganj, District
Pratapgarh
in
July,
2007
prior
to
amendment incorporated under Rule 4 of
the Rules of 1978.

(31) At the relevant point of time,
there was no requirement of having T.E.T.
qualification for the appointment on the
post of Assistant Teacher in the year 2007.
First time, amendment was incorporated on
23 August, 2010 and 29 July, 2011 by the
N.C.T.E.

(32) On perusal of Rule 4 sub
Rule (2), it is reflected that Head Master is
the Principle and only such a teacher who
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
has
five
years
experience
from
a
recognized School in addition to other
qualifications would be eligible for the post
of Headmaster in order to qualify after
amendment. A teacher is required to have
an essential qualification of T.E.T. after
amendment in Rule 4 on 5.12.2012,
therefore it flows therefrom that the
candidates from the post of Head Master
also have possessed the qualification of
T.E.T.. The petitioner being appointed prior
to the amendment prescribing T.E.T.
qualification on the post of Assistant
Teacher is not required to have T.E.T.
qualification for the post of Head Master.

18.
In writing
the
impugned
judgment, the learned Single has also
followed the law laid down in Om
Prakash Tripathi's case (supra) and we
see no reason to differ from it. Assuming
that the National Council for Teacher
Education
(NCTE)
Guidelines
dated
11.02.2011, issued under Section 12(d)
read with Section 12A of the National
Council for Teacher Education Act,
1993 and Section 23 of the Right of
Children to Free and Compulsory
Education Act, 2009, prevail over the
1978 Rules as they stood prior to the Sixth
Amendment w.e.f. 05.12.2012, for reason
of the Central law prevailing over the
State law on a subject falling in the
concurrent list, as held in Om Prakash
Tripathi's case (supra), the writ petitioner
was appointed as an assistant teacher in a
recognized school on 01.07.2009. At that
time, there were no NCTE Guidelines at
variance with the 1978 Rules. Thus, at the
time that the writ petitioner was appointed
as an assistant teacher, there was no
requirement of passing the TET. The writ
petitioner,
therefore,
was
validly
appointed an assistant teacher and at the
time of consideration of her candidature
for the post of Headmistress, neither the
amendment made to the 1978 Rule w.e.f
05.12.2012 nor the NCTE Guidelines, that
came
after
the
writ
petitioner's
appointment as an assistant teacher, can be
read
retrospectively
to
render
her
appointment as an assistant teacher a
nullity. The writ petitioner was validly
appointed as an assistant teacher. Her
experience as such, in recognised schools,
qualifies her for the post of a headmistress
under the 1978 Rules. This is particularly
so, inasmuch as there is no requirement
for a headmistress as such, passing the
TET under the 1978 Rules. No other
provision has been brought to our notice,
which may directly require a headmistress
of a Junior High School to pass the TET
for the purpose of maintaining her
candidature as such.

19. No other point was pressed.

20. In view of the aforesaid facts, we
do not find any merit in this appeal. It is
dismissed.
----------
(2022) 10 ILRA 1080
ORIGINAL JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 19.09.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Matters under Art. 227 (Civil) No. 4126 of 2019

Colonel Mukul Dev ...Petitioner
Versus
Smt. Deveshwari Devi ...Respondent

Counsel for the Petitioner:
Sri Vinayak Mithal

Counsel for the Respondent:
Sri Avneesh Tripathi, Sri Sikhar Tondon