District Basic Shiksha Adhikari ... vs Pankaj Kumar And 3 Others
2022 Latest Caselaw 20818 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						 Judgement reserved on 10.11.2022
 
						Judgement delivered on 13.12.2022
 

 
Court No. - 29
 

 
Case :- SPECIAL APPEAL No. - 34 of 2022
 

 
Appellant :- District Basic Shiksha Adhikari Basti
 
Respondent :- Pankaj Kumar And 3 Others
 
Counsel for Appellant :- Awadhesh Kumar
 
Counsel for Respondent :- Virendra Singh
 

 
Hon'ble Manoj Misra,J.

Hon'ble Vikas Budhwar,J.

(Delivered by Vikas Budhwar,J.)

1. Heard Sri Awadhesh Kumar, learned counsel for the appellant, Sri Virendra Singh, learned counsel for the writ petitioner/respondent and learned Standing Counsel who appears for respondent no. 2 to 4.

2. This intra-court appeal is against the judgement and order dated 24.8.2021 of the learned Single Judge in Writ-A No.3514 of 2019 by which the writ petition of the writ petitioner was allowed with a direction to the appellant herein to accord payment of salary on the post of Assistant Teacher in the trained grade from the date of acquiring the training qualification within a period of three months from the date of presentation of copy of the order as also to release the entire arrears due and payable to the petitioner within a further period of two months thereafter.

3. In nutshell the facts giving rise to the instant appeal are that the mother of the writ petitioner was appointed as an Assistant Teacher in 1993 at Primary School Ramawapur Pathak Sadar managed by the Basic Shiksha Parishad.

4. On the basis of Govt. Order dated 4.9.2000, writ petitioner applied for compassionate appointment claiming himself to be holder of Shastri degree from Sampoornanand Sanskrit Vidyalaya obtained in the year 2007; B.Ed. from Deen Dayal Upadhyay Gorakhpur, University obtained in the year 2009; and TET Examination on 26.2.2011. The candidature of the writ petitioner was considered and by order dated 18.5.2013 he was appointed as Assistant Teacher (Untrained) in the fixed pay of Rs.7,300/-. As the petitioner was appointed as an untrained teacher, vide order dated 15.6.2013 of the appellant, he was sent to undergo B.T.C. training from D.I.E.T. Basti which the writ petitioner claims to have successfully completed on 14.12.2016. On 20.3.2018, the appellant granted trained grade to the writ petitioner w.e.f. 14.12.2016. As, despite the order, the writ petitioner was not paid salary, he filed Writ-A No. 3514 of 2019 seeking following reliefs:

"(i) Issue a writ of mandamus directing the respondents to pay the salary to petitioner from 18.5.2013 to up till now in accordance with order of District Basic Siksha Adhikari, Basti dated 20.3.2018 i.e. untrained grade from 20.5.2013 to 13.12.2016 and from 14.12.2016 to up till as trained grade and continue to pay salary of trained grade to petitioner.

(ii) Issue a writ, order or direction in the nature of which the Hon'ble Court may deem fit and proper under the circumstances of the case.

(iii) To award cost of the petition to the Petitioner."

5. In response thereto, the appellant filed its counter affidavit questioning the appointment of the writ petitioner on the ground that the writ petitioner was not eligible and qualified to be offered appointment as an Assistant Teacher as he did not possess the requisite training qualification required by Rule 8 of the Uttar Pradesh Education (Teacher) Service Rules, 1981 as amended on 9.11.2021.

6. Learned Single Judge by the impugned judgement and order dated 24.8.2021 allowed the writ petition with direction upon the appellant to release the salary of the writ petitioner in accordance with the order passed by the appellant on 20.3.2018.

7. Questioning the impugned judgment and order of the learned Single Judge, the appellant has filed the present appeal.

8. Before noticing the submissions raised to question the order impugned, it will be apposite to notice the statutory provisions governing the subject.

9. The State legislature in order to provide for establishment of a board of basic education and for the matters connected therewith enacted Uttar Pradesh Education Act, 1972 ( 1972 Act).

10. Section 19 of the 1972 Act empowered the State Government to notify Rules for carrying out the purpose of 1972 Act. Under Sub-Section (1) of the Section 19 of the 1972 Act, the Governor of the State of Uttar Pradesh was pleased to notify Rules i.e. The Uttar Pradesh Education (Teachers) Service Rules, 1981 (1981 Rules) on 3rd January, 1981.

11. Rule 5 of the 1981 Rules provides for source of recruitment. So far as the present controversy is concerned, the same revolves around the appointments made in a Junior Basic School which, as per Rule 2(h), means a basic school where instructions are being imparted from Class-I to V. So far as Rule 5(a)(ii) is concerned it pertains to source of recruitment of Assistant Masters and Assistant Mistress of Junior Basic School and the same is to be filled by direct recruitment as provided in Rule 14 of the 1981 Rules.

12. Rule 8 of the 1981 Rules prescribes academic qualification which is with regard to the essential qualifications of the candidates for appointment to the post. Rule 8 of the 1981 Rules underwent various amendments however so far as the the present controversy is concerned, the same relates to the amendments made on 9.11.2011. For the sake of clarity, academic qualifications as required prior to and as on 9.11.2011 for appointment on the post of Assistant Master and Assistant Mistress of a Junior Basic School are being quoted hereinunder:-

"

8. Academic Qualifications. The essential qualifications of candidates for appointment to a post referred to in clause (a) of Rule 5 shall be as shown below against each:"

Post

Academic Qualifications

Post

Academic Qualifications

(ii) Assistant Master and Assistant Mistress of Junior Basic School

A Bachelor's Degree from a University established by law in India or a Degree recognized by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course recognized by the Government as equivalent thereto:

Provided that the essential qualification for a candidate who has passed the required training course shall be the same which was prescribed for admission to the said training course.

Assistant Master and Assistant Mistress of Junior Basic School

Bachelor's degree from a University established by law in India or a degree recognized by the Government as equivalent thereto together with any other training qualification consisting of a Basic Teacher's Certificate (BTC), two years' BTC (Urdu) Vishist BTC and have passed teacher eligibility test conducted by the Government of Uttar. Pradesh.

13. Before proceeding further, reference may also be made to the National Council for Teachers Education Act, 1993 (Act No.73 of 1993) which was enacted to provide for the establishment of a National Council for Teachers Education with a view to achieve planned and coordinated development for teacher education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher education system (including qualifications of school teachers) and for the matters collected therewith.

14. Section 12 of the 1993 Act enjoins the Council to take all steps as it may think fit for ensuring planned and coordinated development of teacher education and for the determination and maintenance of standards for teacher education. Section 12A confers power on the Council to determine minimum standards of education of school teachers.

15. With a view to provide for free and compulsory education to all children of the age of 6 to 14 years, the Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009 ( In short RTE Act, 2009) which received the assent of the President of India on August 26, 2009. Section 2(f) of the 2009 Act defines elementary education as education from first class to eight class. Section 2(n) defines school as any recognised school imparting elementary education. Section 23 of 2009 Act as it existed on the date of its enactment reads as under:-

23. Qualifications for appointment and terms and conditions of service of teachers-(1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher.

(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if its deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification:

Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under subsection (1), shall acquire such minimum qualifications within a period of five years.

16. A second proviso to Sub-section (2) of Section 23 of 2009 Act was inserted by Act No.24 of 2017 published in Gazette of India, Extra, Part II, Section 1 on 10th August, 2017 enforced w.e.f. 1.4.2017. The same is quoted hereunder:-

"Provided further that every teacher appointed or in position as on the 31st March, 2015, who does not possess minimum qualifications as laid down under sub section (1), shall acquire such minimum qualifications within a period of four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017."

17. In exercise of the powers conferred by Sub-Section (1) of Section 23 of the 2009 Act on August 23, 2010 a notification was issued i.e. National Council for Teachers Education Noti. No. F. No.61-03/20/2010/NCTE/(N&S), dated August 23, 2010, published in the Gazette of India, Extra, Part III, Section 4, dated 25th August, 2010, which provided for the minimum qualifications of the teachers to be appointed.

18. The minimum qualification for the appointment of teachers from Classes I-V is being quoted hereunder:-

"Minimum Qualifications--

(i) Classes I-V

(a) Senior Secondary (or its equivalent) with at least 50% marks and 2 years Diploma in Elementary Education (by whatever name known)

Or

Senior Secondary (or its equivalent) with at least 45% marks and 2 years Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations, 2002

Or

Senior Secondary (or its equivalent) with at least 50% marks and 4 years Bachelor of Elementary Education (B.El.Ed.)

Or

Senior Secondary (or its equivalent) with at least 50% marks and 2 years Diploma in Education (Special Education)

And

(b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the guidelines framed by the NCTE for the purpose."

19. On 29.7.2011 another notification providing for the minimum educational qualifications for the teachers to be appointed for the classes I to V and Classes VI to VIII was issued.

20. The relevant extract of minimum qualifications for classes I to V is quoted herein under :-

National Council For Teacher Education

Notification

New Delhi, the 29th July, 2011

F.No.61-1/2011/NCTE/N&S)

"1. Minimum Qualifications :

(i) Classes I-V

(a) Senior Secondary (or its equivalent) with at least 50% marks and 2year Diploma in Elementary Education (by whatever name known)

OR

Senior Secondary (or its equivalent) with at least 45% marks and 2year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations, 2002.

OR

Senior Secondary (or its equivalent) with at least 50% marks and 4year Bachelor of Elementary Education (B.El.Ed.)

OR

Senior Secondary (or its equivalent) with at least 50% marks and 2 year Diploma in Education (Special Education)

OR

Graduation and two year Diploma in Elementary Education (by whatever name known)

AND

(b) pass in the Teacher Eligibility Test (TET), to be conducted by the ap- b propriate Government in accordance with the Guidelines 16 framed by the NCTE for the pourpose.

(II) For sub-para (ii) of para 1 of the Principal Notification, the following shall be substituted, namely"

21. Further in exercise of powers conferred under Section 38 of the 2009 Act, the Central Government made the Right of Children to Free and Compulsory Rules, 2010 which came to be gazetted on 9.4.2020. Rule 17 of the 2010 Rules provides for relaxation in minimum qualifications, according to which the Central Government is empowered to notify an academic authority for laying down the minimum qualification of a person to be eligible for appointment as a teacher.

22. Rule 18 of the 2010 Rules provides for relaxation of minimum qualifications as well as Rule 19 provides for acquiring the minimum qualifications.

23. Under Section 38 of the 2009 Act the State of Uttar Pradesh also framed, The Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011. Rule 15 provides for minimum qualification of teachers to be laid down by an authority authorised by the Central Government as well as Rule 16 provides for relaxation of minimum qualification.

24. As there was no provision contained under the 1981 Rules providing for grant of compassionate appointment so the State Government issued Government Order dated 4.9.2000 which provides for compassionate appointment. Paragraph 4 of the Government Order dated 4.9.2000, which is relevant for the purposes of the present case, is extracted below:-

"(4) ऐसे मृतक आश्रित जो सेवायोजन हेतु आवेदन पत्र प्रस्तुत करने की तिथि को सहायक अध्यापक के पद हेतु सेवा नियमों में विहित शैक्षिक अर्हता रखते हों, परतु प्रशिक्षण अर्हता नहीं रखते / पूरी नहीं करते, को अप्रशिक्षित अध्यापक के रूप में सेवायोजन हेतु आवेदन करने पर यथा सम्भव तीन माह के अंदर सेवायोजन की सुविधा प्रदान की जायेगी। ऐसे मृतक आश्रित को सेवायोजन के बाद संबंधित जनपद के जिला शिक्षा एवं प्रशिक्षण संस्थान में प्रारम्भ होने वाले बेसिक अध्यापक प्रमाण पत्र (बी०टी०सी०) प्रशिक्षण पाठयक्रम के आगामी पहले बैच में प्रशिक्षण हेतु प्रवेश दिया जायेगा। मृतक आश्रित के रूप में प्राथमिक विद्यालय में सहायक अध्यपाक / अध्यापिका के पद पर नियमित नियुक्ति प्रदान करने के लिए उनको बी०टी०सी० प्रशिक्षण पाठ्यक्रम सफलतापूर्वक पूर्ण करना अनिवार्य होगा। प्रशिक्षण अवधि में उन्हें अप्रशिक्षित अध्यापक के रूप में नियत वेतन, जैसा कि शासन द्वारा समय-समय पर निर्धारित किया गया हो देय होगा। बेसिक अध्यापक प्रशिक्षण पाठ्यक्रम में उत्तीर्ण होने के बाद ही प्राथमिक विद्यालय में 'सहायक अध्यापक के पद पर नियमित नियुक्ति प्रदान की जायेगी ।

नियुक्त प्राधिकारी एवं जिला शिक्षा एवं प्रशिक्षण संस्थान का यह दायित्व होगा कि वह अप्रशिक्षित अध्यापक के रूप में सेवायोजित मृतक आश्रित अभ्यर्थियों के सेवारत प्रशिक्षण की व्यवस्था उनके सेवायोजन के बाद प्रारम्भ होने वाले पहले प्रशिक्षण सत्र में सुनिश्चित करेंगे। ऐसे मृतक आश्रित को जो उपर्युक्त सेवारत प्रशिक्षण को निर्धारित अवधि में सफलतापूर्वक पूर्ण करने में असफल रहते हैं, के लिए यह विकल्प उपलब्ध रहेगा कि वह चतुर्थ श्रेणी- के पद सापेक्ष्य नियुक्ति हेतु आवेदन कर अथवा प्रशिक्षण उत्तीर्ण करने तक अप्रशिक्षित अध्यापक के रूप में नियत वेतन पर बने रहें। किन्तु प्रतिबंध है कि ऐसे सेवारत बी.टी.सी. पाठयक्रम के प्रशिक्षणार्थी की भांति ही बी०टी०सी० पाठयक्रम की अनुपूरक परीक्षा हेतु विहित नियमों के अनुसार अवसर अनुमन्य होंगे। किन्तु यदि अभ्यर्थी तब भी बी0टी0सी0 के अंतिम परीक्षा उत्तीर्ण करने में विफल रहते है तो ऐसे अभ्यर्थी के लिए चतुर्थ श्रेणी के पद के सापेक्ष्य नियमित नियुक्ति के अतिरिक्त अन्य कोई विकल्प शेष नहीं रहेंगे। अतः ऐसे अभ्यर्थी जो बी०टी०सी० परीक्षा में अंतिम रूप से विफल रहते है, को सहायक अध्यापक पद के लिए अभ्यर्थन स्वतः निरस्त समझा जायेगा और बी०टी०सी० परीक्षा में अंतिम रूप से असफल होने के माह के अंतिम कार्य दिवस से अप्रशिक्षित अध्यापक के रूप में भी उनकी नियुक्ति स्वतः समाप्त समझी जायेगी। किन्तु ऐसे अभ्यर्थी यदि चतुर्थ श्रेणी के रिक्त / अधिसंख्य पद के सापेक्ष्य सेवायोजन की प्रार्थना करते है, तो उस विचार किया जा सकेगा ।"

25. In the contextual background of the various provisions noticed by us, the present case is to be decided.

26. Sri Awadhesh Kumar learned counsel for the appellant has urged that the appointment of the writ petitioner under Dying-In-Harness Rules as an Assistant Teacher was itself illegal & void ab initio as first of all he did not possess the training qualification which was required not only under Rule 8 of the 1981 Rules as amended on 9.11.2011, but also under the notification issued under Sub-Section (2) of Section 23 of the 2009 Act. Once the appointment of the writ petitioner cannot be sustained, no consequential benefits can be accorded.

27. Secondly, he argued that appointment of the writ petitioner on compassionate ground pursuant to Government Order dated 4.9.2000 itself is in teeth of the statutory enactments occupying the field, namely, 2009 Act including the Rules framed and notifications issued thereunder from time to time as per which only a trained teacher can be appointed as held in the case of Hari Shankar and others Vs. State of U.P. and others, reported in 2012 (9) ADJ 191 followed in Badri Narayan Sharma and others Vs. State of U.P., reported in 2021 (8) ADJ 617. Thus, according to him, the learned Single Judge erred in granting relief to the writ petitioner. Learned counsel for the appellant has also cited following judgements which we shall be dealing with a little later.

 
"1.Hari Shankar and others Vs. State of U.P. and others  2012 (9) ADJ 191
 
2. Badri Narain Sharma and others Vs. State of U.P. and others in Special Appeal No.1467 of 2012 decided on 24.2.2016
 
3. Badri Narain Sharma and others Vs. State of U.P. and others in Special Appeal No.1467 of 2012 decided on 9.9.2021
 
4. Vijay Shankar Sharma etc. Vs. State of U.P. others, Special Leave to Appeal (C) No(s) 19316-19342/2021 decided on 17.1.2022
 
5.  Mohd. Sartaj and another Vs. State of U.P. and others (2006)      2 Supreme Court Cases 315 
 
6.  Anand Kumar Yadav Vs. Union of India and others  2015 (8) ADJ 338 (FB) 
 
	
 

28. Sri Virendra Singh, learned counsel for the petitioner/respondent, contended that the appointment of the writ petitioner was as per the Government Order dated 4.9.2000; the writ petitioner neither misrepresented nor concealed the factum of not possessing the requisite training, qualification In fact, consequent to his appointment on compassionate ground, on 18.5.2013, the appellant itself sent the writ petitioner for training. The writ petitioner successfully completed the B.T.C. training in the year 2016. According to him, on 20.3.2018 the appellant itself passed an order declaring that the petitioner is entitled to the trained grade from the date of obtaining the BTC training i.e. 14.12.2016.

29. Sri Singh has also invited our attention to certain paragraphs of the counter affidavit filed by the appellant before the writ court wherein it is admitted that the petitioner-respondent was having the requisite academic qualifications except the necessary training. But the appellant at no point of time either cancelled the appointment or terminated the service rather, it allowed the writ petitioner to continue in service. It is only when the writ petitioner claimed trained grade from 14.12.2016 then by filing counter affidavit questions were raised regarding the validity of appointment of the writ petitioner.

30. It is further contended on behalf of writ petitioner that his appointment is fully saved by the second proviso to sub-Section (2) of Section 23 of 2009 Act as the writ petitioner obtained the B.T.C. training in the year 2016 well within the cut off date.

31. We have considered the rival submissions and carefully perused the records.

32. Indisputably the mother of the writ petitioner who was working as an Assistant Teacher died-in-harness in the year 2011. It is also not in dispute that the petitioner possess necessary academic qualifications i.e. Purva Madhyama from Sampurnanand Sanskrit University in the year 2001; Uttar Madhyma in the year 2003 from U.P. Secondary Sanskrit Education Board; Shastri from Sampurnanand Sanskrit University in the year 2007; B.Ed. in the year 2009 from Deen Dayal Upadhaya University Gorakhpur and has also passed Teachers Eligibility Test in the year 2011. The writ petitioner applied for compassionate appointment by disclosing his educational qualifications to the appellants which is apparent from the application form submitted by the petitioner before the appellant, which bears signature of the competent authority. It is also not disputed that on 18.5.2013 the writ petitioner was accorded compassionate appointment as an Assistant Teacher (untrained) in the fixed pay of Rs.7,300/- pursuant to the Government Order dated 4.9.2000. A specific recital is also there in the appointment order dated 18.5.2013 that the writ petitioner would have to obtain the necessary training i.e. B.T.C. within the period stipulated otherwise he shall be admissible for appointment on Class-IV post only.

33. Records further reveal that on 15.6.2013 the appellant had sent the writ petitioner for training in DIET Basti. Appellant successfully completed the training and he was granted a B.T.C. training certificate on 14.12.2016. Thereafter, on 20.3.2018 the appellant accorded regular pay scale to the writ petitioner as a trained teacher in the pay band of Rs.9300-34000/- GP 4200 w.e.f. 14.12.2016. It is not the case of appellant that the writ petitioner is not discharging the duties assigned to the post of Assistant Teacher continuously from the date of initial appointment till the passing of order dated 20.3.2018.

34. Now a question which arises for our consideration is whether bereft of necessary training the compassionate appointment in pursuance of Government Order dated 4.9.2020 would confer any legal right on the writ petitioner to claim consequential benefits attached to the appointment. The answer to the said question lies in the second proviso to sub-Section (2) of Section 23 of R.T.E. Act, 2009, which provides that a teacher appointed or in position as on 31.3.2015, if he does not possess minimum qualification as laid down in Sub-Section (1), shall obtain such minimum qualifications within a period of four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017, which come into force w.e.f. 1.4.2017.

35. As it is not disputed before us that the writ petitioner was appointed and was in position as Assistant Teacher on 31.3.2015 and he obtained BTC training within the period stipulated in the newly added second proviso to Sub-Section (2) of Section 23 of the 2009 Act, the deficiency, if any, with regard to eligibility stood cured and the appointment saved.

36. On a pointed query being made from the learned counsel for the appellant with regard to existence of any other statutory provision governing the field, the answer rendered was negative.

37. The reliance placed by the appellant upon the judgement of Badri Narain Sharma (Supra) dated 24.2.2016, Hari Shankar (Supra) confirmed in Badri Narain Sharma (Supra) decided on 9.9.2021 as well as the order of the Hon'ble Apex Court in Vijay Shankar Sharma (Supra) is misplaced as in the said cases the courts were concerned with the statutory enactments existing prior to the insertion of the second proviso to Sub-Section (2) of Section 23 of the R.T.E. Act, 2009. The judgements in the case of Mohd. Sartaj (Supra), Shiv Kumar Sharma (Supra) and Anand Kumar Yadav (Supra) also have no application as in those cases also, the implication of the newly added proviso was not considered.

38. We are therefore of the considered view that judgement passed by the learned Single Judge requiring the appellant to pay salary to the writ petitioner as a Trained Grade Teacher w.e.f. 14.12.2016 does not suffer from any legal infirmity. Consequently, the intra-court appeal stands dismissed.

Order Date :- 13.12.2022

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