Allahabad High Court
Amal Kishore Singh vs State Of U.P. Thru' Secry And 4 ... on 23 May, 2017
Bench: Arun Tandon, Prabhat Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 10
Case :- SPECIAL APPEAL No. - 1247 of 2013
Appellant :- Amal Kishore Singh
Respondent :- State Of U.P. Thru' Secry And 4 Others
Counsel for Appellant :- Siddharth Khare,Ashok Khare
Counsel for Respondent :- C.S.C.,J.P.S. Chauhan,Krishan Ji Khare,Raj Kumar Tripathi,Rajeev Mishra,Sanjeev Kumar Yadav
Hon'ble Arun Tandon,J.
Hon'ble Prabhat Chandra Tripathi,J.
Heard Ms. Neha Rai Chaudhary, learned counsel for the appellant, Sri Rajeev Mishra, learned counsel for respondent no.5/petitioner and learned Standing Counsel for respondent nos. 1 to 3.
While hearing the present intra-court appeal arising out of the judgment and order of the learned Single Judge dated 16th August, 2013 passed in Writ-A No. 40949 of 2013 (Harish Chandra versus State of U.P. & 4 Others), one of the issues, which has cropped up for consideration before us is as to whether a teacher working in a recognized Intermediate College having to his credit a post graduate degree as well as B.P. Ed. can be said to be qualified for being appointed as Principal of the Intermediate College or not.
For appreciating the controversy, it is worthwhile to reproduce Appendix-A of Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921, which reads as follows:
"APPENDIX A
(In reference to Regulation 1 of Chapter II)
Minimum eligibilities for appointment of Heads and teachers in non-Government recognised Higher Secondary Schools.
1. Degree and diploma in concerned subject of any University established or regulated by or under any Central Act, Provincial Act or State Act, which is considered to be a University under Section 3 of the University Grants Commission Act, 1956, or of any such institution specially empowered by any Act of Parliament shall be recognised for the purpose of minimum qualifications prescribed under it.
2. Under it in reference to prescribed qualifications the word "trained" means post graduate training qualification such as L.T., B.T., B. Ed., B. Ed. Sc. or M. Ed. of any University or institution as specified in the earlier para or any equivalent (Degree or Diploma). It also includes departmental A.T.C. and C.T. with minimum teaching experience of 5 years'. J.T.C./B.T.C. Grae teacher shall also be considered to be. C.T. if he has worked in C.T. Grade at least for 5 years'.
Essential Qualifications
Sl. No.
Name of the post
Essential Training Experience
Age
Desirable qualficiations
Head of the institution
(1) trained M.A. or M.Sc. or M.Com or M.Sc. (Ag) or any equivalent Post-graduate or any other degree which is awarded by corporate body specified in above-mentioned para one and should have at least teaching experience of four years in classes 9-12 in any training institute or in any institution or university specified in above-mentioned para one or in any degree college affiliated to such university or institution, recognized by board or any institution affiliated from Boards of other State or such other institutions whose examinations recognised by the board, or should the conditions is also that he/she should not be below 30 years of age.
or
(2) First or second class postgraduate degree along with teaching experience of ten years in intermediate classes of any recognized institutions or third class post-graduate degree with teaching experience of fifteen years,
or
(3) Trained post-graduate diploma-holder in science. The condition is that he has passed this diploma course in first or second class and have efficiently worked for 15 or 20 years respectively after passing such diploma course.
Minimum 30 years
Notes: (1) Assistant teachers having at least second class postgraduate degree and specified teaching experience of ten years in intermediate classes of a recognised institution may be exempted from training qualifications, (as per the provisions contained in the Act.)
(2)Teaching experience includes teaching prior to or after teaching or both.
(3)Higher classes means classes from 9 to 12 and experience of teaching these classes is admissible for the post of Headmaster of intermediate college."
The learned Single Judge under the judgment impugned in appeal has held that since B.P.Ed. Is not included in the list of teaching qualification as identified in Clause-II of Appendix-A and there being no decision of the State Government treating the B.P.Ed. to be an equivalent training qualification, persons like the appellant-respondent before this Court, who have the training qualification of B.P.Ed. are not eligible/qualified for being appointed as Principal/Head Master of the High School/Intermediate Institution. The learned Single Judge has gone on to hold that while B.Ed. is the training qualification for teaching the school going subjects, B.P.Ed. is training qualification for imparting education in the subject of physical education only. It has, therefore, been held that two categories of teachers, one appointed for teaching the school going subjects and the other for imparting the education in the subject of physical education form two separate class of teachers under the Intermediate Education Act, 1921. Therefore, a teacher who is appointed for imparting education in the subject of physical education with training qualification of B.P.Ed. may not be held to be eligible for appointment as Principal of the Institution and that such teachers cannot be kept at par with teachers, who impart teaching in other subjects in primary/secondary level.
To similar effect is the decision of the Division Bench of this Court in the case of Vindhyachal Yadav versus State of U.P. & Others reported in 2015 (8) ADJ 688 (DB), where in paragraph-11, it has been held as follows:
"11.Under Appendix A of Chapter II of U.P. Act No. II of 1921 Act, word "trained" has been defined as comprising of post graduate training qualification, such as, L.T., B.T., B.Ed., B.Ed. Sc. or M.D. of any university or institution as specified in Ist paragraph or any equivalent (Degree or Diploma). B.P.Ed. course has not been mentioned or included."
We find it difficult to agree with the reasons so assigned in the judgment of the learned Single Judge as well as the reasons assigned in paragraph-11 of the Division Bench Judgment in the case of Vidhyachal Yadav (Supra).
We are of the opinion that the teachers appointed under the Intermediate Education Act, 1921 form an homogeneous group of teachers from amongst whom ad hoc appointment on the post of Principal is required to be made. So far as the regular appointment is concerned, it is regulated by U.P. Act No. 5 of 1982 and the source of recruitment to the post of Principal has been identified as direct recruitment only.
We may record that qualification to be possessed by a person to be appointed on ad hoc basis as well as to be appointed on substantive basis have to be one and the same. The issue in that regard is well settled in the case of Bansh Lal Singh Sengar versus District Inspector of Schools, Kanpur Dehat reported in (1989) 1 UPLBEC 425.
Therefore, whatever qualifications are prescribed under Appendix-A for the post of Principal apply equally for ad hoc appointment as well as for regular appointment. Merely because a teacher imparts education in one of the recognized subject i.e. physical education after he satisfies statutory prescribed qualifications, it cannot be said that he is not a member of the cadre of teacher to be considered for appointment on the post of Principal/Headmaster. No such distinction has been drawn under the Intermediate Education Act, 1921 or in the Regulations framed there-under. Therefore, only because a different training qualification is prescribed under Appendix-A for teachers to be appointed in Physical Education subject, the teacher so appointed cannot be said to be a different class of teacher.
What is further important to note is that under Clause-2 of Appendix-A, the teaching qualifications like L.T.,B.T., B. Ed., B. Ed. Sc. or M.Ed. precede the words "equivalent qualification" and therefore, they are only by way of illustration and not exhaustive. It is for this reason that in the same Clause-2, it has further been specified that any equivalent degree/diploma would also be a valid teaching training qualification for being treated as trained for appointment as Principal/Headmaster of the institution.
It is not in dispute that National Council for Teachers Education Act, 1993 (hereinafter referred to as the "Act, 1993") deals exclusively with teachers training institutes and the power conferred upon the National Council for Teachers Education specifically Section 12-D is of laying down the guidelines in respect of minimum qualifications for a person to be employed as teacher in an institution.
It is not in dispute that for being admitted to the B.P.Ed. course, a person has to be graduate and the training qualification, which a person obtains after passing the B.P.Ed. course is a post graduate training qualification.
The State Government was required to respond to the query of this Court with regard to B.P.Ed. training qualification being equivalent to the training qualification as required under Clause 2 of Appendix-A of Chapter II of the Regulations framed under the Intermediate Education Act, 1921.
An affidavit has been filed by the Principal Secretary, Secondary Education, U.P. Government at Lucknow dated 18th May, 2017 and in paragraphs 8 and 9 of the affidavit it has been stated as under:
"8.That in Appendix in reference of Regulation-1 Chapter-II of U.P. Intermediate Education Act, does not refer specifically the B.P.Ed. Course. After the Regulation 2001 came into force. It has been adopted by the State as equivalent to 'trained' for which a necessary amendment is required to be incorporated I the Schedule. As a principal, the B.P.Ed. Degree is treated to be equivalent to a 'trained' as referred in para-2 of Appendix-A.
9. That in view of the above, the B.P.Ed. Course is equivalent to that of B.Ed., L.T., B.T./C.T. It is further clarified that the necessary amendment is to be incorporated in the schedule."
It is therefore, no more in doubt that the State Government itself accepts that the B.P.Ed. course is an equivalent qualification to B.Ed., L.T., B.T./C.T. etc. with the enforcement of National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001, but it has been stated that for such equivalence being effected, necessary amendments have to be made in Appendix-A. This, in our opinion, is completely misconceived, inasmuch as under Note-2 to Clause-I of Appendix-A on equivalence to a training course with that of B.Ed. L.T.. B.T./C.T. etc. being recognized, the same would stand included therein and no amendment in the Appendix-A is to be made for the purpose. Once the State Government has recognized that B.P.Ed. Degree/diploma is at par with B.Ed., L.T., B.T./C.T. Etc., the same would stand fully covered under the Appendix and no further amendments in that regard to Clause-2 of Appendix-A would be necessary to give effect to such equivalence.
In our opinion, treating the physical education teacher differently with a teacher appointed in the same institution for teaching other school going subjects would be creating a class within the class.
We may clarify that in Appendix-A at item no. 54, the essential qualifications prescribed for the post of physical education teacher specifically mentions as follows:
"MINI. QUALI. FOR MASTER AND TEACHERS
-
-
-
-
-
'kkjhfjd f'k{kk v/;kid& 1 b.VjehfM,V ¼d{kk 11&12½ ds fy,
Lukrd rFkk 2&jkT; ljdkj }kjk ekU;rk izkIr O;k;ke f'k{kk esa fMIyksek vFkok fdlh v/;kid izf'k{k.k ¼,y0Vh0½ egkfo|ky; ls O;k;ke f'k{kk esa fo'ks"k ;ksX;rk vFkok Hkkjr esa fof/k }kjk LFkkfir fdlh fo'o fo|ky; }kjk iznRr O;k;ke f'k{kk esa mif/[email protected] vFkok mlds led{k dksbZ vU; ;ksX;rkA
gkbZLdwy ¼d{kk 9&10½ ds fy,
ek/;fed f'k{kk ifj"kn~ mRrj izns'k }kjk iznRr b.VjehfM,V izek.ki= vFkok mlds led{k dksbZ vU; vgZrk
,oa
jkT; ljdkj ds f'k{kk foHkkx }kjk iznRr Mh0ih0,M0 izek.ki= vFkok mlds led{k dksbZ vU; vgZrkA
We would have normally set aside the judgment and order of the learned Single Judge giving rise to the present intra-court appeal but we find that in view of conflicting opinion expressed in paragraph-11 of the Division Bench Judgment of this Court in the case of Vindhyachal Yadav (Supra), it would not be appropriate for us to law down any contrary law. We, therefore, deem it fit and proper to refer the following questions for consideration by a Larger Bench of this Court:
(i) Whether training qualification B.P.Ed. is equivalent qualification to that of B.Ed., L.T., B.T./C.T. Etc. so as to be covered by the phrase "equivalent qualification" of training degree/diploma as contained by Clause-2 of Appendix-A of Chapter-II of the Regulations framed under the Intermediate Education Act, 1921?
(ii) Whether a teacher possessed of a degree of Post Graduate and training qualification of B.P.Ed. from an institute duly recognized by National Council for Teachers Education is qualified for being considered for appointment as Principal/Headmaster of a recognized High School/Intermediate institution?
(iii) Whether the law laid down by the Division Bench in the case of Vindhyachal Yadav (Supra) is the correct law or not.
Let the papers be placed before Hon'ble The Chief Justice for constituting a Larger Bench to answer the aforesaid questions:
Status quo as on date with regard to the working of headmaster of the institution shall be maintained.
(P.C.Tripathi, J. (Arun Tandon, J.)
Order Date :- 23.5.2017
Sushil/-
Case :- SPECIAL APPEAL No. - 1247 of 2013
Appellant :- Amal Kishore Singh
Respondent :- State Of U.P. Thru' Secry And 4 Others
Counsel for Appellant :- Siddharth Khare,Ashok Khare
Counsel for Respondent :- C.S.C.,J.P.S. Chauhan,Krishan Ji Khare,Raj Kumar Tripathi,Rajeev Mishra,Sanjeev Kumar Yadav
Hon'ble Arun Tandon,J.
Hon'ble Prabhat Chandra Tripathi,J.
For orders, see our order of date passed on the separate sheets.
(P.C.Tripathi, J. (Arun Tandon, J.)
Order Date :- 23.5.2017
Sushil/-
