Allahabad High Court
Om Prakash Tripathi vs State Of U.P. Thru Secy. Basic Edu. ... on 24 April, 2023
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 17 Case :- WRIT - A No. - 14286 of 2019 Petitioner :- Om Prakash Tripathi Respondent :- State Of U.P. Thru Secy. Basic Edu. Lucknow And Ors. Counsel for Petitioner :- Shiv Kumar,Deepak Kumar Srivastava,Santosh Kumar Tripathi Counsel for Respondent :- C.S.C.,P.K. Singh Bisen,Vinay Misra Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the petitioner.
Present petition has been filed challenging the order dated 27.04.2019 whereby the representation of the petitioner has been rejected.
The facts, in brief, are that the petitioner desirous of being appointed as Headmaster of Mata Badal Srikrishna Laghu Madhyamik Vidhyalaya, Dhamohan, Pratapgarh applied in pursuance to an advertisement issued by the Committee of Management in the two newspapers. The petitioner was appointed as the Principal of the College in the year 2011 and since 02.07.2018, the petitioner was performing his duties as the Principal.
It is stated that the papers with regard to the appointment of the petitioner were forwarded for grant of financial approval which was initially rejected by means of an order dated 07.07.2018 whereby the appointment granted to the petitioner was held to be arbitrary and illegal as the petitioner did not possess the Teacher Eligibility Test (TET) qualification, which according to the respondents, was required in terms of the applicable rules.
The petitioner approached this Court by filing Writ Petition No.22454 (SS) of 2018 wherein this Court had the occasion to deal with Rule 4 of the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978 (hereinafter referred to as 'the 1978 Rules') which provided for minimum qualification for being appointed as an Assistant Teacher as well as the minimum qualification for the appointment to the post of Headmaster of a recognised school.
This Court after considering the judgments relied upon was prima-facie of the view that Rule 4(2) of the 1978 Rules does not provide for the eligibility of having passed the Teacher Eligibility Test and in the light of the said objections, the matter was remanded for taking a fresh decision considering the requirement prescribed under Rule 4(2) of the 1978 Rules.
In terms of the said remand, the impugned order has been passed wherein once again the appointment granted to the petitioner was held to be illegal merely on two grounds; firstly, that the petitioner did not qualify the Teacher Eligibility Test, which according to the respondents was required under Rule 4(2) of the 1978 Rules, and secondly, that the petitioner did not have the experience certificate of teaching for a period of five years in any recognised school.
Contention of learned counsel for the petitioner is that while passing the impugned order, the respondents had placed reliance on a judgment passed by this Court in Writ - A No.12238 of 2016 (Vinod Kumar Shukla v. State of U.P. & Ors.) wherein this Court had expressed his view that Rule 4(1), which prescribes for minimum qualification for appointment to the post of Assistant Teacher, would as a natural corollary, apply to the appointment of the Headmaster also.
It is argued that in the light of the observations made in the judgment dated 30.03.2016 passed in Vinod Kumar Shukla's case (supra), the respondents have formed a view that the petitioner did not possess the required minimum qualification.
As regards the second objection that the petitioner did not have the teaching experience of a period of five years in any recognised school, the petitioner places reliance on a certificate as well as an inquiry report to demonstrate that the petitioner had taught in Shri Krishna Laghu Madhyamik Vidyalaya, Pratapgrah from 19.11.2001 to 30.11.2006. He argues that in terms of the said experience certificate relied upon by the petitioner, the inquiry was conducted and a report dated 14.01.2022 was submitted by the Basic Shiksha Adhikari to demonstrate that the petitioner's claim of having taught from 19.11.2001 to 30.11.2006 was found to be correct.
In the light of the said inquiry, the submission of learned counsel for the petitioner is that the second objection is perverse and contrary to the record.
To appreciate the controversy with regard to the first objection, it is essential to note the provisions of Rule 4 of the 1978 Rules, which is quoted herein below:
"4. Minimum qualification. - (1) The minimum qualifications for the post of Assistant Teacher of a recognised school shall be a Graduation Degree from a University recognised 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 or U.G.C. or 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.
(c) Five years teaching experience in a recognized school."
Rule 4 of the 1978 Rules as quoted above was notified on 05.12.2012. Prior to the said notification, the requirement of TET was not provided, which essentially came after enactment of the Right of Children to Free and Compulsory Education Act. The notification, as per the counsel for the petitioner, itself provided that the persons who are working as Assistant Teachers prior to the notification, would continue to serve, thus, the submission is that the requirement of possession of TET was prospective w.e.f. 05.12.2012.
He argues that the learned Single Judge in the judgment of Vinod Kumar Shukla (supra) extended the qualification provided under Rule 4(1) to the qualification which are required for appointment to the post of Headmaster as specified in Rule 4(2), which cannot be done for the simple reason that Rule 4(2) which provides for minimum qualification for appointment to the post of Headmaster, did not prescribe the requirement of TET at that point of time.
He further draws my attention to the specific notification issued on 04.12.2019 wherein Rule 4(2) of the 1978 Rules was amended to provide for essential qualification for appointment to the post of Headmaster, to include the qualification of having passed the TET. He, thus, argues that the rule as amended on 04.12.2019, cannot be having retrospective effect.
I had the occasion to go through the judgment of this Court in the case of Vinod Kumar Shukla (supra). The analogy of the said judgment is that when a teacher is required to have essential qualification of TET, it naturally flows therefrom that the candidates for the post of Headmaster will also have to possess the qualification of TET. I am in respectful disagreement with the said view as the prescription of qualification is essentially in the domain of legislature and there cannot be any presumption which is further fortified by the fact that the legislature itself amended the rules in the year 2019 prospectively.
In view of the said, I have no hesitation in holding that the requirement of having passed the TET examination would apply only in respect of appointments made subsequent to 4th December, 2019 - the date on which the 1978 Rules were amended - and not to the appointments made prior to the said date.
Thus, the reasoning as recorded in the impugned order with regard to the requirement of having the TET qualification is unsustainable.
As regards the other ground of the petitioner not having the five years experience, the same is perverse and contrary to the own report of the department as contained in letter dated 14.01.2022.
Thus, on both the said grounds, the impugned order dated 27.04.2009 cannot be sustained and is quashed. The writ petition is accordingly allowed.
Respondents are directed to grant approval to the appointment of the petitioner as the impugned order does not record any other irregularity in the appointment of the petitioner.
The petitioner would be entitled to the salary with effect from the date the petitioner assumed the charge.
Order Date :- 24.4.2023 nishant