Prashant Kumar Niranjan vs State Of U.P. And 3 Others
2023 Latest Caselaw 8143 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Reserved
 
Court No. - 33
 

 
Case :- WRIT - A No. - 12536 of 2017
 

 
Petitioner :- Prashant Kumar Niranjan
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Jitendra Kumar,Siddharth Khare,Vinay Kumar Nigam
 
Counsel for Respondent :- C.S.C.,Krishna Kumar Chand
 

 
Hon'ble Rajiv Joshi,J.

Heard Sri Siddharth Khare, learned counsel for the petitioner, learned Standing Counsel for the State respondents and Sri Krishna Kumar Chand, learned counsel for the respondents-3 & 4.

The instant writ petition under Article 226 of the Constitution has been filed for following reliefs:

"(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 08.08.2016 (Annexure-'1' to this writ petition) and 31.01.2017 (Annexure-'2' to this writ petition) passed by the respondent nos. 3 & 2 respectively;

(b) Issue a writ, order or direction in the nature of mandamus commanding upon the respondents to permit the petitioner to work on the post of Assistant Teacher in Primary School run by U.P. Basic Education Board and pay regular salary and other emoluments months to month as and when falls due."

(c) Issue a writ, order or direction in the nature of mandamus commanding upon the respondents to pay and release the due consolidated amount of training period and respective regular salary for the period the petitioner worked as Assistant Teacher in Primary School up to till date along with interest."

Brief facts of the case are that the petitioner was appointed as untrained Assistant Teacher in Primary School under the control of U.P. Basic Education Board, Allahabad on compassionate ground vide order dated 12.03.2013 on account of sudden death of his wife, who was serving as Assistant Teacher in Primary School, Hazaratpur, Block Dakor, District Jalaun. The petitioner joined the said school on 13.03.2013. Subsequently, on 25.03.2013, the District Basic Education Officer, Jalaun sent a letter to the Principal DIET, Pendari, Jalaun requesting him to ensure the training of the petitioner. The petitioner did B.T.C. training at DIET, Pendari, Jalaun and completed the course. The Principal, DIET, Pendari, Jalaun vide letter dated 30.06.2015 relieved the petitioner to join and report the primary school. The petitioner consequently joined the Primary School Hazaratpur Development Block Dakor, Ditrict Jalaun on 01.07.2015.

Subsequently, the District Basic Education Officer, Jalaun issued notice dated 13.07.2016 to the petitioner to explain and put evidence, documents in support of his valid appointment. Thereafter, the petitioner appeared before the District Basic Education Officer, Jalaun at Orai and submitted his explanation on 20.07.2016, but without considering the petitioner's explanation the District Basic Education Officer, Jalaun at Orai passed the impugned order dated 08.08.2016, cancelling the petitioner's compassionate appointment on the post of Assistant Teacher. Against the impugned order dated 08.08.2016, the petitioner preferred a representation/appeal before Secretary, U.P. Basic Education Board, Allahabad, which was also rejected vide order dated 31.01.2017 affirming the order dated 08.08.2016. Both the orders are impugned in the present writ petition.

Learned counsel for the petitioner submitted that as per the Govt. Order dated 04.09.2000, there is a scheme for appointment on compassionate ground on the post of Assistant Teacher, which provides that compassionate appointee can be given appointment as Assistant Teacher if possess requisite educational qualification and in case, he is untrained, he will be sent for B.T.C. training course to the DIET concerned and on completion of B.T.C. course, he/she will be given regular appointment as Assistant Teacher in primary school.

Learned counsel for the petitioner further submitted that the petitioner had completed/passed the B.T.C. training in 2015, which is apparent from the certificate dated 30.06.2015, copy of the same has been appended at annexure-7 to the writ petition.

Learned counsel for the petitioner further submitted that as per the notification dated 23.08.2010 issued by the National Council for Teacher Education (N.C.T.E.) as well as the notification dated 10.09.2012, which extended/relaxed time to complete the Teachers Eligibility Test (T.E.T.) upto 31st March, 2014 and the petitioner within the said period, qualified U.P.T.E.T. -2011, copy of the said document has been annexed at page 63/64 to the writ petition.

Learned counsel for the petitioner further submitted that specific averment in this regard has been made in paragraphs 14 to 16 of the writ petition, which has not been denied in the counter affidavit filed on behalf of the respondents-3 & 4 and as such, the petitioner is fully qualified and has rightly been appointed as Assistant Teacher in the primary school, but his services has been terminated vide impugned orders without holding any departmental inquiry as contemplated under Rule 5 (3) of Uttar Pradesh Basic Education Staff Rules, 1973.

On the other hand, learned Standing Counsel as well as learned counsel for the respondents-3 & 4 submitted that the appointment of the petitioner has rightly been cancelled vide impugned orders as he has not requisite qualification as required for the Assistant Teacher after the enforcement of Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the Act, 2009).

In support of their contention, learned Standing Counsel as well as learned counsel for the respondents-3 & 4 have placed reliance upon the judgment of the Apex Court rendered in the case of State of Uttar Pradesh and Others Vs. Mohd. Rehan Khan, 2023 (1) SLR 82.

I have considered the rival submission so raised by learned counsel for the parties and perused the record.

In exercise of the powers given under Section 23 (1) of the Act, 2009, the Central Government designated National Council for Teacher Education (N.C.T.E.) as academic authority for laying down qualifications of the teachers. The N.C.T.E. issued a notification on 23rd August, 2010 specifying the qualification for the teachers which includes T.E.T. The T.E.T. is to be conducted by the State Government or Central Government as was made one of the qualification for the teachers. Section 12-A of the National Council for Teacher Education Act, 1993 (hereinafter referred to as the Act, 1993) was brought to save all those appointments made prior to Amendment which include even the requirement of T.E.T. certificate.

After enforcement of the Act, 2009 and U.P. Basic Education (Teachers), Service Rules, 1981 as amended (hereinafter referred to as the Rules, 1981), it is apparent that it is mandatory for the appointment of the Assistant Teacher to possess B.A. degree, B.Ed and T.E.T. qualification. As per the G.O. dated 12.06.2012, B.T.C. certificate be obtained after the enforcement of Act, 2009 vide notification dated 23rd August, 2010 issued by the N.C.T.E. laying down minimum qualification for the appointment of teachers in Class I to VIII in a school referred to in Section 2 (n) of the Act, 2009, which provides that the person who pass the U.P. T.E.T. by 01.01.2012, which was extended till 31st March, 2014 vide notification dated 10.09.2012 issued by the N.C.T.E. Relevant paragraph of the aforesaid notification are quoted as under:

"The persons referred to in sub clause (a) of clause (I) of paragraph 3 of the said notification as amended from time to time, shall also be eligible for appearing in the Teacher Eligibility Test conducted by the State Government in respect of teacher appointments made in the State up to 31st March, 2014, in accordance sub-paragraph (iii) of paragraph 5 of the Guidelines for conducting Teacher Eligibility Test under the Right of Children to Free and Compulsory Education Act, 2009 issued by the Council vide its letter dated the 11th February, 2011."

The petitioner has passed the B.T.C. examination on 30.06.2015 and also passed U.P. T.E.T.-2011 (Primary Level) as well U.P. T.E.T.-2011 (Upper Primary Level) vide certificate dated 25.11.2011, copy of the same has been appended at page 63-64 to the writ petition and as such, the petitioner is fully qualified for the appointment on the post of Assistant Teacher in primary school. Specific averments in this regard have been made in paragraphs 14 to 16 of the writ petition, which are as under:

"14. That the scheme for appointment on compassionate ground on the post of Assistant Teacher provided in the Govt. Order dated 04.09.2000 and the same also provides that compassionate appointee can be given appointment as Assistant Teacher if possesses requisited educational qualification and in case they are untrained, they will be sent for b.T.c. training course to the DIET and on the completion of B.T.C. training, they will be given regular appointment as assistant teacher in primary school. Copy of the Govt. Order dated 04.09.2000 is being filed herewith and marked as Annexure-12 to this writ petition.

15. That the National Council for Teachers Education has issued notification dated 23.08.2010 in exercise of power under Section 23 (1) of Right of Children to Free and Compulsory Education Act 2009 and has granted relaxation to untrained candidates who possess other requisite qualifications can be appointed as Assistant Teacher in Class 1 to 5th up to 1st Jan, 2012. Copy of the notification dated 23.08.2010 issued by the NCTE is being filed herewith and marked as Annexure-13 to this writ petition.

16. That on the request of the State of U.P., the NCTE issued another notification dated 10.09.2012 further extending the said relaxation for a period up to 31st March, 2014. Copy of the NCTE Notification dated 10.09.2012 is being filed herewith and marked as Annexure-14 to this writ petition."

Paragraphs 14 to 16 of the writ petition has been replied in paragraph 7 of the counter affidavit, which is as under:

"7. That the contents of paragraph nos. 12 to 19 of the writ petition are not admitted, because, petitioner does not possess the requisite qualification for appointment on the post of Assistant Teacher. According to 1981 rules and G.O. dated 12.6.2012. Since the appointment of the petitioner was not in accordance with law, hence his appointment was of the petitioner was not in accordance with law, his appointment was rightly rejected by order dated 8.8.2016 by the office of answering respondent. Which was also affirmed by the respondent no.2 by its order dated 21.01.2017."

The judgment relied upon by learned Standing Counsel as well as counsel for the respondents-3 & 4 i.e. Mohd. Rehan Khan (supra) is not at all applicable in the present case.

In view of the above, it is apparent that the petitioner is fully qualified for the appointment on the post of Assistant Teacher in primary school as he possess B.T.C. training course and minimum qualification as per the notification of N.C.T.E. and the contrary finding recorded in both the impugned orders dated 8.08.2016 and 31.01.2017 passed by respondent no.3-District Basic Education Officer, Jalaun at Orai and Secretary, Uttar Pradesh Education Board, Allahabad respectively, are not sustainable in the eye of law and are liable to be quashed.

Accordingly, the writ petition is allowed. The impugned orders dated 8.08.2016 and 31.01.2017 are quashed and direction is issued to the competent authority to continue the petitioner as a Assistant Teacher in the primary school run by U.P. Basic Education Board and pay regular salary and other emoluments months to month including the arrears.

Order Date :-21.03.2023

Noman