# The State of U.P. & Ors v. Santu Prasad Chaudhary & Ors

- **Citation:** (2024) 9 ILRA 468
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-12
- **Case number:** Special Appeal No. 590 of 2024
- **Bench:** Mahesh Chandra Tripathi, Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-ors-v-santu-prasad-chaudhary-ors-52368
- **Pages:** 16

## Headnote

A. Service Law - UP Recognized Basic
Schools
(Junior
High
Schools)
(Recruitment and Conditions of Service of
Teachers)
Rules,
1978
-
Rule
4
-
Termination
-
Assistant
teacher
-
Appointed as untrained in 1977 and
worked upto 2007 - Discontinued from
service in 2007, when the institution was
upgraded - Permissibility - Held, the
provisions of
Rules,
1978
were
not
retrospective, therefore, appointment of
an untrained teacher prior to these Rules
could not be held to be illegal only on that
account - The petitioners possessed the
minimum qualification of training in view
of Rules, 1978 - However, the Division
Bench
relegated
the
matter
to
the
Authority to ascertain entire working
since 2012. In case they have worked in
the institution, they will be entitled to
salary but if it is found that they were not
working in the institution, they will not be
entitled for the salary from July, 2012 till
their superannuation on the principle of
'no work no pay'. (Para 32, 35, 41 and 49)

Special Appeal partly allowed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,953 of 52,601. This is a partial read: ask again with offset=39953 for what follows._

468 INDIAN LAW REPORTS ALLAHABAD SERIES

12. इसके्‌
अनतररक्त, यह्‌
ननदेश्‌
ददया्‌
जाता्‌ है्‌ कक्‌ सांबांगधत्‌ न्यायालय, इस न्यायालय्‌
द्वारा्‌ पाररत्‌ आदेश्‌ की्‌ प्रमाखणत्‌ प्रनत्‌ प्राप्त्‌
होने्‌ की्‌ नतगथ्‌ से्‌ एक माह्‌ के्‌ भीतर, समस्त्‌
अशभलेखों्‌
और्‌
तथ्यों्‌
का्‌
सम्यक्‌
अवलोकन्‌
कर, पवगध्‌ के अनुसार, एक्‌ नया, पवगधसम्मत,
आख्यानयत्‌ एवां्‌ तकफसांगत्‌ आदेश्‌ पाररत्‌ करेगा।्‌
नया आदेश्‌ पाररत्‌ करते्‌ समय्‌ न्यायालय्‌ यह्‌
सुननजश्चत्‌ करेगा्‌ कक्‌ उस्‌ आदेश्‌ में्‌ पयाफप्त तकफ,
प्रमाखणक्‌
आधार्‌
और्‌
पवगधक्‌
ननष्किफ्‌
स्पष्ट्‌
रूप्‌ से्‌ उजल्लखखत्‌ हों, ताकक न्याय्‌ की्‌ प्रकक्रया्‌
का्‌ सम्यक्‌ ननवफहन्‌ हो्‌ सके।

13. यह्‌ भी्‌ सुननजश्चत्‌ ककया्‌ जाना्‌ चादहए्‌
कक्‌ सांबांगधत्‌ न्यायालय्‌ अपने्‌ ननणफय में्‌ उगचत्‌
कारणों्‌
का्‌
उल्लेख्‌
करते्‌
हुए, पक्षकारों्‌
के्‌
अगधकारों्‌
और्‌
तथ्यों्‌
की पवस्तृत्‌
समीक्षा्‌
के्‌
बाद्‌ ननष्किफ्‌ पर्‌ पहुाँचे।्‌ इस्‌ प्रकार्‌ का्‌ आदेश्‌ न्‌
केवल्‌ पवगध की्‌ दृजष्ट्‌ से्‌ उगचत्‌ होगा, बजल्क्‌
न्यायालय्‌
की्‌
ननष्पक्षता,
पारदशशफता्‌
और
उत्तरदानयत्व्‌
का्‌
भी्‌
प्रमाण्‌
होगा, जो्‌
कक्‌
न्यानयक्‌ प्रकक्रया्‌ के्‌ मूलभूत शसद्धाांतों्‌ में्‌ से्‌ एक्‌
है।

14. उपरोक्त्‌ ननदेशों्‌ एवां्‌ दटप्पखणयों्‌ के्‌
आलोक्‌ में, प्रस्तुत्‌ आवेदन्‌ स्वीकृत्‌ ककया्‌ जाता्‌
है।

15. कायाफलय्‌ को्‌ ननदेशशत्‌ ककया्‌ जाता्‌ है्‌
कक्‌ इस्‌ आदेश्‌ की्‌ प्रमाखणत्‌ प्रनत एक्‌ सप्ताह्‌
की्‌
अवगध्‌
के्‌
भीतर्‌
सांबांगधत्‌
न्यायालय्‌
को्‌
प्रेपित्‌
की्‌
जाए, ताकक्‌
पवगधक प्रकक्रया्‌
का्‌
सम्यक ्‌ अनुपालन्‌ सुननजश्चत्‌ हो्‌ सके।
---------
(2024) 9 ILRA 468
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.09.2024
BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Special Appeal No. 590 of 2024

The State of U.P. & Ors. ...Appellants
Versus
Santu Prasad Chaudhary & Ors.
 ...Respondents

Counsel for the Appellants:
Abhishek Srivastava, Ratan Deep Mishra

Counsel for the Respondents:
Kamla Singh

A. Service Law - UP Recognized Basic
Schools
(Junior
High
Schools)
(Recruitment and Conditions of Service of
Teachers)
Rules,
1978
-
Rule
4
-
Termination
-
Assistant
teacher
-
Appointed as untrained in 1977 and
worked upto 2007 - Discontinued from
service in 2007, when the institution was
upgraded - Permissibility - Held, the
provisions of
Rules,
1978
were
not
retrospective, therefore, appointment of
an untrained teacher prior to these Rules
could not be held to be illegal only on that
account - The petitioners possessed the
minimum qualification of training in view
of Rules, 1978 - However, the Division
Bench
relegated
the
matter
to
the
Authority to ascertain entire working
since 2012. In case they have worked in
the institution, they will be entitled to
salary but if it is found that they were not
working in the institution, they will not be
entitled for the salary from July, 2012 till
their superannuation on the principle of
'no work no pay'. (Para 32, 35, 41 and 49)

Special Appeal partly allowed. (E-1)

List of Cases cited:

1. Rikh Pal Singh Vs District Basic Education
Board, Allahabad; 1990 UPLBEC 351
9 All. The State of U.P. & Ors. Vs. Santu Prasad Chaudhary & Ors.
469
2. Pati Ram Yadav Vs St. of U.P. & ors.; (1999)
3 UPLBEC 2379

3. Ram Sarup Vs St. of Har. & ors.; AIR 1978 SC
1536

4. Dr. M.S. Mudhol & anr. Vs S.D. Halegkar &
ors.; (1993) 3 SCC 591

5. Rajendra Prasad Srivastava Vs District
Inspector
of
Schools,
Gorakhpur,
Now
Maharajganj; 1994 ACJ 781

6. Smt. Shanti Devi Verma Vs Deputy Director of
Education; 1982 UPLBEC 365

7. Ashok Kumar Sharma & anr. Vs Chandra
Shekhar & anr.; 1993 Supp. (2) SCC 611

8. Roshni Devi Vs St. of Har. & ors.; (1998) 8
SCC 59

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.
&
Hon'ble Prashant Kumar, J.)

1. Heard Shri Ratan Deep Mishra,
learned
Standing
Counsel
for
Stateappellants and Mrs. Kamla Singh, learned
counsel for the opposite parties-petitioners.

2. The instant intra court appeal under
Chapter VIII Rule 5 of the Allahabad High
Court Rules has been preferred assailing
the validity of the judgment and order dated
27.09.2023 passed by learned Single Judge
in Writ-A No.13353 of 2013 (Santu Prasad
Chaudhary & Ors. v. State of U.P. & Ors.),
the operative portion of which, for ready
reference, is reproduced as under:-

".........14. On precise query
made before the learned Standing Counsel,
the legal terminology related to irregularity
and illegality submitted through counter
affidavit in consonance with the wordings
mentioned in the order which impugned in
the present petition is not clear, if in any
case,
any
illegality
found
in
the
appointment that does not relate to the
matter which has been decided by the
respondent no. 2 while adjudicating the
controversy in the strict compliance of the
order direction passed by co-ordinate
bench of this Court.

15. More so, no illegality is
apparent on the face of record at the time
of adjudication of writ petition No. 12216
of 2010, wherein interim protection has
been extended at the time of admission and
later on considering the bonafide of the
petitioner, the matter has been remitted
back to the respondent no. 2 for deciding
afresh.

16. Learned Standing Counsel
sought attention of the court over the
ground which has formed the basis of
passing the order dated 12.09.2012 but at
the same time fails to apprise that once the
decision has been taken up by the
respondent no. 1 in favour of the
respondent no. 5, wherein the same
position was prevalent as mentioned in the
order which impugned in the present
petition how the case of the petitioner are
different with respondent no. 5, whereas,
the allegation which has been put forward
by the respondent no. 5 was only against
one Mohd. Sayeed and not at all against
the petitioners. The reasoning behind order
dated 12.09.2012 is contrary to the order
03.08.2010.

17. It is also informed by learned
counsel for the petitioners are not paid
their salaries till June, 2012 and thereafter
retired during pendency of the instant writ
petition.

18.
After
having
the
rival
submissions extended by learned counsel
for the parties and after perusal of the
counter affidavit preferred by respondent
no. 5 which more or less supporting the
470 INDIAN LAW REPORTS ALLAHABAD SERIES
case of the petitioners, the order dated
12.09.2012 is hereby set aside. All the
petitioners
are
thereby
treated
as
permanent incumbent of the institution,
arrears of salary from July, 2012 till date
of their retirements be extended. Since
there is hardly any case made out by the
respondents that the petitioners never
rendered their services for the institution
and thereafter, retiral benefits admissible
to the petitioners be also extended within a
period of six months from the date of
production of certified copy of this order.

19. The writ petition stands
allowed accordingly."

FACTS

3. The facts in a nutshell relevant and
essential for disposal of instant appeal are
noted herein below.

4. The opposite parties-petitioners
while preferring the writ petition had
challenged the order dated 12.09.2012
passed by Director of Education (Basic),
U.P. on the ground that he had rejected the
representation
of
the
petitioners
overlooking the order dated 03.08.2012
passed by Special Secretary, Government
of U.P. and also prayed for direction to the
respondents to pay the salary and all the
emoluments to the petitioners.

5. The claim of the petitioners is that
they are serving in Lal Bahadur Shastri
Purwa Madhyamik Vidyalaya, Jagdishpur,
Raja, Siddharth Nagar1, which is a
recognized and aided Junior High School
and governed under the U.P. Junior High
School (Payment of Salaries) Act, 1978.
The institution was granted temporary
recognition on 4.6.1980 and the permanent
recognition was granted on 31.10.1984.
The institution had received grant-in-aid on
01.12.2006. On the said date, salary of 01
Head Master, 04 Assistant Teachers, 01
clerk and 03 Class-IV employees were
approved. The Asstt. Director of Education
(Basic), Gorakhpur vide order dated
31.3.2007 had approved the salary against
the said posts.

6. The petitioner no.1 was appointed
in the institution in question on 02.07.1977.
Petitioner nos.2 and 3 were appointed as
Assistant Teachers in the said institution on
02.07.1977
and
petitioner
no.4
was
appointed
as
Assistant
Teacher
on
05.07.1977. The petitioner no.5 was
appointed as Clerk on 2.7.1977 and
petitioner nos.6, 7 and 8 were appointed as
Peon on 02.07.1977 and 26.09.1989
respectively. The services of all the
petitioners were affirmed by the then
District Basic Education Officer, Siddharth
Nagar vide order dated 23.3.1985. The
services of the teachers are covered by the
provisions of U.P. Recognized Basic
Schools
(Junior
High
Schools)
(Recruitment and Conditions of Service of
Teachers) Rules, 19782 and the service of
the
Ministerial
Staff
and
Group-D
employees is covered by the provisions of
Uttar Pradesh Recognized Basic Schools
(Junior High Schools) (Recruitment and
Conditions of Service of Ministerial Staff
and Group 'D' Employees) Rules, 19843.

7. The controversy had raked up when
one Kanhaiya Lal, who was Asstt. Teacher
in the institution made a complaint against
one Md. Sayeed, Asstt. Teacher (Urdu). He
had also later on filed Writ Petition
No.44836 of 2009, which was disposed of
on 26.08.2009 directing the Director of
Education, Basic, U.P. Lucknow to pass
reasoned and speaking order. In response to
the said mandate, the Director of Education
(Basic), U.P. Lucknow passed an order
9 All. The State of U.P. & Ors. Vs. Santu Prasad Chaudhary & Ors.
471
dated 17.2.2010 recognising the services of
those teachers and employees, who were
being paid salary after obtaining the reports
and documents from the Asstt. Director of
Education,
Basic,
Gorakhpur;
District
Basic Education Officer, Siddharth Nagar
and Manager/ Principal of the institution
and accordingly cancelled the earlier order
dated 31.3.2007 by which the salary was
approved by the Asstt. Director of
Education, Basic, Gorakhpur.

8. The order dated 17.2.2010 was
challenged by the petitioners in Writ
Petition No.12216 of 2010, wherein interim
order
was
accorded
on
11.3.2010
permitting the petitioners to continue and
be paid salary till further orders. Inspite of
the aforesaid order, once the salary was not
released, the petitioners preferred contempt
application. In response to the order dated
6.8.2012 passed by the Contempt Court the
salary was released in favour of the
petitioners-opposite parties. Later on the
said
writ
petition
was
allowed
on
30.07.2012 on the ground of non-adherence
to principles of natural justice. The order
dated 17.2.2010 passed by the Director of
Education, Basic, U.P. was set aside and
the matter was remitted back to the
Director of Education, Basic to pass
appropriate order. In compliance to the
Writ
Court
order,
the
Director
of
Education, U.P. Lucknow, after giving
opportunity to all the stake holders, passed
an order dated 12.09.2012 derecognising
the services of petitioners-opposite parties
and other employees, stating them to be
illegally appointed and the salary was also
stopped since August, 2012. The said order
was impugned in the Writ Petition
No.13353 of 2013 in which learned Single
Judge has passed the judgment dated
27.09.2023, which has been assailed in the
present special appeal.

9. It is averred that the minimum
qualification of Head-Master and Asstt.
Teacher is provided under unamended Rule
4 of the Rules, 1978, (which were
applicable at the relevant time), which for
ready reference is reproduced as under:-

"4. Minimum qualification-(1)
The minimum qualifications for the post of
Assistant Teacher of recognised school
shall be Intermediate Examination of the
Board of High School and Intermediate
Education, Uttar Pradesh or equivalent
examination (with Hindi and a teacher's
training course recognised by the State
Government
or
the
Board
such
as
Hindustani Teaching Certificate, Junior
Teaching
Certificate,
Basic
Teaching
Certificate, or Certificate of Training).

(2) The minimum qualifications
for the appointment to the post of Headmaster of a recognised school shall be as
follows:

(a) A degree from a recognised
University or an equivalent examination
recognised as such;

(b) A teacher's training course by
the State Government or the Board, such as
Hindustani Teaching Certificate, Junior
Teaching
Certificate,
Certificate
of
Training or Basic Teaching Certificate; and

(c)
Three
years
teaching
experience in a recognised school."

10. Rule 5 of the Rules, 1978 deals
with
eligibility
for
appointment
and
specially
bars
any
appointment
as
Headmaster
or
Assistant
Teacher
in
substantive capacity in recognized schools
unless-

(A) He possesses the minimum
qualification prescribed for such posts;

(B) He is recommended for such
appointment by the Selection Committee.
472 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Rule 7 of the Rules, 1978
prescribes for advertisement of vacancy,
which is as follows:-

"7. Advertisement of vacancy.--
(1) No vacancy shall be filled, except after
its advertisement in at least newspapers one
of whom must have adequate circulation all
over the State and the other in a locality the
school is situated.]

(2) In every advertisement and
intimation
under
clause
(1),
the
Management shall give particulars as to the
name
of
the
post
the
minimum
qualifications
and
age-limit,
if
any,
prescribed for such post and the last date
for receipt of applications in pursuance of
such advertisement."

12. Rule 10 of the Rules, 1978
provides for procedure for selection, which
for ready reference, is also reproduced as
under:-

"10. Procedure for selection.-(1)
The Selection Committee shall, after
interviewing such candidates as appear
before it on a date to be fixed by it in this
behalf, of which due intimation shall be
given to all the candidates, prepare a list
containing as far as possible the names, in
order of preference, of three candidates
found to be suitable for appointment.

(2) The list prepared under clause
(1) shall also contain particulars regarding
the date of birth, academic qualifications
and teaching experience of the candidates
and shall be signed by all the members of
the Committee.

(3) The Selection Committee
shall, as soon as possible, forward such list,
together
with
the
minutes
of
the
proceedings of the Committee to the
management.

(4) The Manager shall within one
week from the date of receipt of the papers
under clause (3) send a copy of the list to
the District Basic Education Officer.

(5)(i)
If
the
District
Basic
Education Officer is satisfied that-

(a) the candidates recommended
by the Selection Committee possess the
minimum qualifications prescribed for the
post;

(b) the procedure laid down in
these rules for the selection of Headmaster
or Assistant Teacher, as the case may be,
has been followed he shall accord approval
to the recommendations made by the
Selection
Committee
and
shall
communicate
his
decision
to
the
Management within two weeks from the
date of receipt of the papers under clause
(4).

(ii) If the District Basic Education
Officer is not satisfied as aforesaid, he shall
return the papers to the Management with
the direction that the matter shall be
reconsidered by the Selection Committee.

(iii)
If
the
District
Basic
Education Officer does not communicate
his decision within one month from the
date of receipt of the papers under clause
(4), he shall be deemed to have accorded
approval to the recommendations made by
the Selection Committee."

ARGUMENTS
OF
STATE
APPELLANTS

13. Shri Ratan Deep Mishra, learned
Standing Counsel for State-appellants has
submitted that in the present matter the
teachers have been shown to have been
appointed in the year 1997. At the time of
their alleged appointment admittedly they
were lacking the essential qualification as
they were all untrained and the same was
also contrary to the order dated 08.11.1974,
9 All. The State of U.P. & Ors. Vs. Santu Prasad Chaudhary & Ors.
473
which was issued by the Basic Shiksha
Parishad, whereby specific direction was
given for appointing trained teachers in the
recognised institutions. He submitted that
the institution in question was accorded
temporary recognition in the year 1980.
Clause 4 and 14 of the recognition order
specifically provides:-

"4- अप्रसिसित अध्य पको के स्थ न पर प्रिसित
अध्य पको की सनयुसि की ज ए

14-सिभ गीय आदेिों / सनयमो क अिरिः प लन
सकय ज ए"

14. He has further placed reliance on
the permanent recognition order of the
institution dated 31.10.1984 (Paper Book
p.322). Clause 2 & 4 of the said order
specifically states as follows:-

"2-सिद्य लय में सिभ गीय सनयमो एििं आदेिों की
सक ी प्रक र की अिहेलन करने तथ तथ्यों को सिप ने पर म न्यत
सनरस्त करने क असिक र सिभ ग को ुरसित है।

4-सिभ ग द्व र सनि ाररत न्यूनतम योग्यत ओ े
सिभूसित अध्य पको की सनयुसि सनयम नु र की ज ए तथ अप्रसित
अध्य पको के स्थ न पर प्रसिसित अध्य पको की सनयुसि की ज ए"

15. He submitted that from the
aforesaid it is apparent that the institution
had to follow the Rules prevailing at the
time of recognition of the institution. The
Rules of 1978 got notified on 13.02.1978.
In Rule 4 (1) of the Rules, 1978,
qualification
is
prescribed
but
the
institution continued with the teachers not
having the qualification prescribed as per
Rule 4 (1) of Rules, 1978.

16. Learned counsel for the Stateappellants further argued that the alleged
appointments of Group-C and D posts were
also contrary to the Rules, 1984. For the
selection of Ministerial Staff as well as the
Class-IV employees, neither any vacancy
was advertised in the newspaper nor
prescribed procedure for selection was
adhered to. No selection committee was
constituted
nor
any
proceeding
for
interview
was
held.
Moreso
the
appointments
were
made
without
preparation of any merit list and without
getting approval of the competent authority
prior to the appointment. They also got the
salary only from the month of March, 2010
to July, 2012. Surprisingly, the Manager's
Return (MR) submitted by the Management
did not accompany any order of sanction of
posts. He submitted that as the salary had to
be paid by the State exchequer, the
Authority had every right to see whether
the alleged appointments were made
strictly in accordance with the procedure
prescribed under the Rules, 1978 and the
Rules, 1984.

17. He vehemently submitted that
while issuing temporary and permanent
recognition to the institution, rider was put
for ensuring that the appointment of
teachers must be as trained teachers. It,
therefore, appears that a purported claim
had been set up on the basis of some
alleged appointment of the year 1977 and
the claim had been cleverly set up to be
prior to the invocation of Rules, 1978. The
contention that the Rules, 1978 would not
be applicable is unsustainable as while
according temporary recognition in the year
1980 and the permanent recognition in the
year
1984
specific
clauses
were
incorporated
for
appointing
trained
teachers. On the one hand they got
recognition and on the other hand they had
not ensured the terms and conditions of the
recognition.

18. He lastly submitted that in the
facts and circumstances while passing the
judgment and order, learned Single Judge
474 INDIAN LAW REPORTS ALLAHABAD SERIES
has erred in law and even not touched the
Rules applicable in the instant matter and
without ascertaining from the record,
indulgence was accorded to the petitioners,
as such the impugned judgment is per se
unsustainable.

SUBMISSIONS ON BEHALF OF
OPPOSITE PARTIES- PETITIONERS

19. Per contra, Mrs. Kamla Singh,
learned counsel for the opposite partiespetitioners vehemently opposed the special
appeal and submitted that there was
absolutely no reason for raising the
controversy
after
approximately
three
decades of appointment and continuous
working of opposite parties-petitioners. She
submitted that merely non-possession of
trained certificate at the time of their initial
appointment and due to this reason holding
all of them ineligible in terms of Rules,
1978 is per se illegal as the appointment of
Asstt. Teachers were made in the year
1977.

20. She further submitted that in
writ proceeding, in response to the order
passed by learned Single Judge detailed
supplementary
affidavit
was
filed,
wherein it had been indicated that after
completion
of
building
and
other
infrastructure of the institution, the
Committee of Management had decided
to appoint Asstt. Teachers and nonteaching staff. Thereafter, the meeting of
Committee of Management was convened
on 18.6.1977. The agenda of meeting had
also been appended along with the
supplementary affidavit. Accordingly, it
is claimed that the opposite partiespetitioner nos.1 to 4 were appointed on
29.6.1977 and they joined the institution
on 1.7.1977 and 2.7.1977. Even the
District Basic Education Officer vide
order dated 6.7.1982 had temporarily
approved the services of first petitioner as
Head Master. Admittedly after fulfilling
the
minimum
required
norms
the
institution
was
recognised.
Initially
temporary recognition was accorded on
4.6.1980 and permanent recognition was
accorded on 31.10.1984. Therefore, at
this belated stage, it cannot be presumed
that the Asstt. Teachers and Group-C &
D employees were not working in the
institution.

21. In this backdrop, she further
submitted that even before according
permanent recognition, the services of
petitioners were approved by the then
District Basic Education Officer on
23.09.1985 on probation of one year i.e.
from 02.07.1984 and after verifying the
infrastructure and working strength of
teachers and other employees, after
making due enquiry, the institution was
also
taken
on
grant-in-aid
list
on
05.02.2007 and financial approval was
accorded on 31.03.2007. While issuing
the order dated 05.02.2007 for putting the
various institutions on grant-in-aid list,
direction was also issued to Asstt.
Director of Education, Basic, Gorakhpur
Division, Gorakhpur for ensuring due
enquiry of the institutions, which were to
be put on grant-in-aid list. She submitted
that only, thereafter, adequate notices
were issued to the institutions including
the institution in question for submitting
details so that actual salary of teachers
and other staff may be ensured w.e.f.
10.03.2007.

22. Mrs. Singh, learned counsel
assertively
submitted
that
exhaustive
procedure was adopted while putting the
institution on grant-in-aid list. Even at the
said stage, due verification was again made
9 All. The State of U.P. & Ors. Vs. Santu Prasad Chaudhary & Ors.
475
and adequate information was submitted by
the Manager of the institution. Only,
thereafter, final approval was accorded on
31.03.2007.

23. She submitted that in most
arbitrary manner, on the basis of some
complaint, the appointments of entire
teachers and non-teaching staff were
cancelled and financial approval was
withdrawn vide order dated 17.02.2010,
which was subject matter of challenge in
Writ Petition No.12216 of 2010. Learned
Single Judge vide order dated 11.3.2010
had accorded interim protection in favour
of the petitioners and the direction was also
issued for payment of salary. Later on the
said writ petition was allowed and the
matter was relegated. She submitted that
learned
Single
Judge
has
rightly
appreciated the record and decided the writ
petition. The order impugned does not
suffer from any infirmity, which may
warrant any interference in the instant
appeal.

ANALYSIS & REASONING

24. We have given thoughtful
consideration to the submissions advanced
at Bar and have gone through the impugned
judgment and material placed on record.

25. Before examining the merits of
the arguments of learned counsel for the
parties, it would be apt to cite the
provisions governing the appointment of
teachers in the recognised basic schools.

26. The U.P Basic Education Act,
19724 was enacted for establishment of the
Board of Basic Education and to deal with
the matters connected therein. As per
section (2), the definition Clause, the
"Basic Education" means education up to
the VIIIth Class imparted in schools other
than high schools or intermediate college.
"Junior Basic School" means a Basic
School in which education is imparted up
to Class-V. "Junior High School" means a
basic school in which education is imparted
to boys and girls or to both from Class-VI
to Class-VIII. Section 3 contemplates
setting of the Board of Basic Education.
The function of the Board under Section 4
(1) is to organize, coordinate and control
the imparting of basic education and
teachers' training in the State in order to
raise its standards and to co-relate it with
the system of education as a whole in the
State.

27. In exercise of powers conferred
under section 19 of the Act, 1972, to carry
out the purposes of the Act, three sets of
Rules have been framed regulating the
recruitment and conditions of service of
persons appointed to the post of teachers.
The
"U.P
recognized
Basic
schools
(Recruitment and Conditions of Service of
Teachers and other Conditions) Rules,
19755"
was
framed
to
govern
the
recognized
Basic
Schools
imparting
education up to Class-V, not being an
institution
belonging
to
or
wholly
maintained by the Board or any local body.
The Rules 1978 was framed to govern the
service conditions of teachers of recognized
Junior High School, i.e. an institution other
than a High School or Intermediate College
imparting education from Class-VI to
Class-VIII (both inclusive). The "U.P Basic
Education Teachers Service Rules, 19816"
was
framed
to
govern
the
service
conditions of teachers of the Junior Basic
Schools imparting instructions in Nursery
and Class I to VIII established by the U.P
Board
of
Basic
Education.
The
academic/eligibility
qualifications
for
appointment to the post of Assistant
476 INDIAN LAW REPORTS ALLAHABAD SERIES
Teacher in a Nursery and Junior Basic
Schools (I to V) established by the Board
as per Rules, 1981 are as follows:-

(i) Mistress
of Nursery
School

Bachelors degree from a
University established by law
in
India
or
a
degree
recognised
by
the
Government
equivalent
thereto
together
with
certificate
of
teaching
(Nursery) from recognised
training institution of Uttar
Pradesh
and
any
other
training course recognised by
the
Government
as
equivalent
thereto
and
teacher eligibility test passed
conducted
by
the
Government
or
by
the
Government of India.
(ii)
Assistant
Master and
Assistant
Mistress of
Junior
Basic
School

(ii)(a) Bachelors degree from
a University established by
law in India or a degree
recognised
by
the
Government
equivalent
thereto together with any
other
training
course
recognised
by
the
Government as equivalent
thereto together with the
training
qualification
consisting
of
a
Basic
Teacher's Certificate (BTC),
two
years
BTC
(Urdu)
Vishisht BTC. Two year
Diploma
in
Education
(Special Education) approved
by the Rehabilitation Council
of India or four year degree
in
Elementary
Education
(B.EI.Ed.), two year Diploma
in Elementary Education (by
whatever name known) in
accordance with the National
Council
of
Teacher
Education
(Recognition,
Norms
and
Procedure)
Regulations, 2002 or any
training qualifications to be
added by National Council
for Teacher Education for the
recruitment of teachers in
primary
education
and
teacher eligibility test passed
conducted
by
the
Government
or
by
the
Government of India and
passed
Assistant
Teacher
Recruitment
Examination
conducted
by
the
Government.

28. In Rules, 1981, a Junior Basic
School has been defined to mean a Basic
School where instructions are imparted
from Class-I to V; whereas a "Senior Basic
School" means a Basic School where
instructions are imparted from Class-VI to
VIII. A ''Nursery school,'' on the other
hand, means a school in which children
ordinarily of the age up to 8 years are
taught in the Class lower than Class-'I'.

29. In so far as Rules, 1975 governing
service
conditions of
teachers
of
a
recognized Junior Basic School (Class-I to
V) is concerned, Rule 9 thereof provides
that for appointment on a teaching post in
any recognized school a person must
possess such qualification as are specified
by the Board in this behalf and previous
approval to whose appointment has been
granted by the District Basic Education
Officer in writing.

30. Under Rules, 1978 pertaining to
service
conditions
of
teachers
in
a
recognized Senior Basic School or Junior
9 All. The State of U.P. & Ors. Vs. Santu Prasad Chaudhary & Ors.
477
High School, (Class VI to VIII) the
minimum qualification as provided in Rule
4 of the Original Rule has been quoted in
the foregoing part of this judgment.

31. Rule 5 of the Original Rules, 1978
further puts a condition that no one shall be
appointed
as
Assistant
Teacher
in
substantive capacity in any recognized
school; unless (a) he possess minimum
qualification prescribed for such post; (b)
he is recommended for such appointment
by the Selection Committee.

32. The question that arises for
consideration in the instant appeal is
whether the services of the opposite
parties-petitioner nos.1 to 4, who were
appointed as untrained teachers in the
year 1977 and have worked continuously
since then, could be deemed to have come
to an end after the institution was
upgraded and came on grant-in-aid list
with effect from 2007 because they were
not trained Asstt. Teachers on the date of
their appointment, even though they
acquired
necessary
qualification
and
became trained teachers during service
either after upgradation of the institution
or it's coming on grant-in-aid list in the
year 2007.

33. When the Rules, 1978 were
enacted,
the
minimum
educational
qualification prescribed for appointment
of Asstt. Teacher was Intermediate only.
The petitioner nos.1 to 4 were thus
educationally qualified to be appointed as
Asstt. Teacher in Junior High School. It
may now be examined whether the
untrained teachers could be appointed
permanently
and
whether
such
appointments
were
illegal.
Before
10.03.1971
the
services
of
Asstt.
Teachers in Junior High School were
governed by the provisions of the
Education Code.

34. Chapter-V of Education Code
dealt with recognised Junior and Senior
Basic schools. It has two Sections 'A' and
'B'. The former dealt with school for boys
and later for girls. No qualification was
prescribed for an Asstt. Teacher in boys
school. But paragraph 196 in 'B' Section
provided that no untrained teacher shall be
appointed permanently in a recognized
school. This did not apply to boys' schools.
As such there was no bar on permanent
appointment for an untrained teacher in
boys schools. The State Government had
issued the order in 1971, which purported
to revise the salary of Asstt. Teachers in
junior high schools but it made obligatory
for any untrained teacher appointed after
the notification was issued to acquire
training certificate within five years of his
appointment otherwise he would be paid
the initial salary only. There was thus no
restriction on the management of a Junior
Basic School in appointing an untrained
teacher permanently.

35.

Training
became
essential
qualification under Rules, 1978. The
appointment of petitioner nos.1 to 4,
however, being prior to it and in
accordance with law in force on the date of
their appointment does not suffer from any
defect. The provisions of Rules, 1978 were
not retrospective, therefore, appointment of
an untrained teacher prior to these Rules
could not be held to be illegal only on that
account. Ref. Rikh Pal Singh v. District
Basic Education Board, Allahabad7.
These Rules did not in any manner effect
the
appointments
made
after
the
Government Order of 1971. An untrained
teacher, therefore, could be appointed
permanently between 1971 and 1978.
478 INDIAN LAW REPORTS ALLAHABAD SERIES

36. In similar facts and circumstances
in Pati Ram Yadav v. State of U.P. &
Ors.8 a learned Single Judge of this Court
has considered the appointment of Asstt.
Teacher in Boys Junior High School, which
were made prior to G.O. dated 10.03.1971
and observed that the same stood governed
by Education Code. Chapter-V, Section A
of the Education Code provides for no
training qualification. The G.O. dated
10.03.1971 brought a change. It raised no
objection for appointment of an untrained
candidate as permanent teacher but put up a
condition that it should obtain training
qualification within five years. In case it
fails to do so, then it would continue an
initial scale of pay. Learned Single Judge
observed that for the first time Rules, 1978
prescribed
'training'
as
essential
qualification
for
appointment
and
appointment of an untrained teacher on
permanent basis between 10.03.1971 to
year 1970 is valid and regular.

37. In Ram Sarup v. State of
Haryana & Ors.9, the Supreme Court
examined whether the appointment of
Labour-cum-Conciliation Officer, who did
not possess five years experience in the
working of Labour Laws would be void
and observed that it would not be void but
merely irregular and the observations are:-

"............. The appellant could
not, therefore, be legitimately appointed to
the
post
of
Labour-cum-Conciliation
Officer unless, amongst other things, he
possessed five years' experience in the
working of Labour laws as Labour
Inspector, Deputy Chief Inspector for
Shops or Wage Inspector, which he
admittedly did not. .............

The question then arises as to
what was the effect of breach of Cl. (1) of
R. 4 of the Rules. Did it have the effect of
rendering the appointment wholly void so
as to be completely ineffective or merely
irregular, so that it could be regularised as
and when the appellant acquired the
necessary qualifications to hold the post of
Labour-cum-Conciliation Officer. We are
of the view that the appointment of the
appellant was irregular since he did not
possess
one
of
the
three
requisite
qualifications but as soon as he acquired
the necessary qualification of five years'
experience of the working of labour laws
in any one of the three capacities
mentioned in Cl. (1) of R. 4 or in any
higher capacity, his appointment must be
regarded as having been regularised. The
appellant
worked
as
Labour-cumConciliation Officer from 1st Jan., 1968 and
that being a post higher than that of Labour
Inspector or Deputy Chief Inspector of Shops
or Wage Inspector, the experience gained by
him in the working of Labour Laws in the
post of Labour-cum-Conciliation Officer
must be regarded as sufficient to constitute
fulfilment of the requirement of five years'
experience provided in Cl. (1) of R. 4. The
appointment of the appellant to the post of
Labour-cum-Conciliation Officer, therefore,
became regular from the date when he
completed five years after taking into account
the period of about ten months during which
he worked as Chief Inspector of Shops. Once
his appointment became regular on the
expiry of this period of five years on his
fulfilling the requirements for appointment as
Labour-cum-Conciliation
Officer
and
becoming eligible for that purpose, he could
not thereafter be reverted to the post of
Statistical Officer. The order of reversion
passed against the appellant was, therefore,
clearly illegal and it must be set aside."
 (emphasis supplied)

38. In Dr. M.S. Mudhol & Anr. v.
S.D. Halegkar & Ors.10, the Supreme
9 All. The State of U.P. & Ors. Vs. Santu Prasad Chaudhary & Ors.
479
Court observed that even though the first
respondent did not have the requisite
educational qualification to be selected for
the post of Principal but as the default was
on the part of the Director of Education in
illegally approving the said appointment
made in 1981 as a result of which the said
respondent continued to work on the post
for 12 years, it would be inadvisable to
disturb him from the said post, particularly
when the infraction of the statutory Rule
regarding the qualification was not that
grave taking into consideration all the other
relevant facts. The observations of the
Apex Court in the said judgment are as
under:-

"4.
The
contention
of
the
respondents that M.Ed. IInd Division was
equivalent to M.A. IInd Division is
obviously fallacious. ................... We have,
therefore, no doubt that the 1st respondent
did not have the requisite educational
qualifications to be selected for the post of
the Principal.

5. As regards the teaching
experience, the 1st respondent's contention
is that he had worked as a teacher for 9
years in a High School and Higher
Secondary School which had upto 11
standards. According to him, he also
worked as a Lecturer in History. His
further contention is that the post of the
School Inspector in Karnataka where he
was working as such and that of the
teacher were interchangeable. Hence the
selection
committee
had
taken
into
consideration his experience in both the
capacities. These facts are not controverted
before us and in any case today, he has the
requisite experience of teaching as he has
been teaching the 11th and the 12th class
continuously for 12 years now, since 1981.
It can, therefore, be said that at least as on
date when his removal from the post of
Principal is sought, he cannot be said to be
disqualified on account of the lack of
required teaching experience.

6. Since we find that it was the
default on the part of the 2nd respondent,
Director
of
Education
in
illegally
approving the appointment of the first
respondent in 1981 although he did not
have the requisite academic qualifications
as a result of which the 1st respondent has
continued to hold the said post for the last
12 years now, it would be inadvisable to
disturb him from the said post at this late
stage particularly when he was not at fault
when his selection was made. There is
nothing on record to show that he had at
that time projected his qualifications other
than what he possessed. If, therefore,
inspite of placing all his cards before the
selection
committee,
the
selection
committee for some reason or the other
had thought it fit to choose him for the
post and the 2nd respondent had chosen to
acquiesce in the appointment, it would be
inequitous to make him suffer for the
same
now.
Illegality,
if
any,
was
committed by the selection committee and
the 2nd respondent. They are alone to be
blamed for the same.

7. Whatever may be the reasons
which were responsible for the nondiscovery of the want of qualifications of
the 1st respondent for a long time, the fact
remains that the Court was moved in the
matter after a long lapse of about 9 years.
The post of the Principal in a private
school though aided, is not of such
sensitive public importance that the Court
should find itself impelled to interfere with
the appointment by a writ of quo warranto
even assuming that such a writ is
maintainable. This is particularly so when
the incumbent has been discharging his
functions continuously for over a long
period of 9 years when the court was
480 INDIAN LAW REPORTS ALLAHABAD SERIES
moved and today about 13 years have
elapsed. The infraction of the statutory
rule regarding the qualifications of the
incumbent pointed out in the present case
is also not that grave taking into
consideration all other relevant facts. In
the
circumstances,
we
deem
it
unnecessary to go into the question as to
whether a writ of quo warranto would lie
in the present case or not, and further
whether mere laches would disentitle the
petitioners to such a writ.
(emphasis supplied) "

39. The aforesaid decision of the
Supreme Court in Dr. M.S. Mudhol & Anr.
(Supra) was followed by the Division
Bench of this Court in Rajendra Prasad
Srivastava
v.
District
Inspector
of
Schools,
Gorakhpur,
Now
Maharajganj11 and the observations are:-