WPSS/426/2022
2022 Latest Caselaw 817 UK

     IN THE HIGH COURT OF UTTARAKHAND
                          AT NAINITAL
        ON THE 22ND DAY OF MARCH, 2022
                               BEFORE:
     HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI

        Writ Petition (S/S) No. 426 of 2022
BETWEEN:
Committee of Management of Sri
Marwad Kanya Pathshala Inter College
Roorkee                                                 ...Petitioner
      (By Mr. Ajay Veer Pundir, Advocate)

AND:

State of Uttarakhand and Others                      ...Respondents
      (By Mr. H.M. Raturi, Deputy Advocate General with Ms. Indu Sharma,
      Brief Holder for the State and Mr. P.C. Petshali, Advocate for
      respondent no.4.)


                          JUDGMENT

This writ petition has been filed by Committee of Management of a Government Aided Intermediate College at Roorkee, District Haridwar.

2. Under challenge is an order passed by Regional Additional Director of Education, Pauri, on 20.01.2012, whereby petitioner's appeal against order dated 14.11.2021 passed by Chief Education Officer, Garhwal refusing to grant approval to suspension of respondent no.4, was dismissed.

3. The institution in question was included in grant-in-aid list of the State Government, on 07.05.2015. Respondent no.4 was appointed as Assistant Teacher L.T. Grade (Hindi), on 14.09.2010. There is dispute regarding date of the advertisement pursuant to which petitioner was

selected and appointed. Petitioner contends that the advertisement was published on 28.08.2010 while learned Deputy Advocate General and Mr. P.C. Petshali, Advocate for respondent no.4 submit that advertisement was published in newspapers, on 12.06.2010.

4. Relying upon a notification dated 23.08.2010 issued by National Council for Teachers Education, disciplinary proceedings were initiated against the petitioner, on the ground that she had not passed T.E.T., on the date of her appointment. The notification provides that for appointment as Teacher in an elementary school, passing T.E.T. would be necessary. Petitioner was also placed under suspension and this Court has been informed that an order of dismissal has also been passed against her. However order of punishment is yet to be approved by the Competent Authority.

5. Since there is requirement of approval of the Competent Authority for suspending a Teacher, under Section 39 (5) of the Uttarakhand School Education Act, 2006, therefore, the suspension order passed against respondent no.4 was sent for approval to the Chief Education Officer, who refused to accord approval vide order dated 14.11.2021. Petitioner challenged the order passed by Chief Education Officer by filing an appeal before the Regional Additional Director of Education, Pauri. Petitioner's appeal has been rejected by Regional Additional Director of Education, Pauri vide order dated 20.01.2022. In this writ petition, petitioner has challenged the order passed by Appellate

Authority. However the order passed by Chief Education Officer has not been challenged.

6. Learned counsel for the petitioner submits that since the notification issued by National Council for Teachers Education came into force on 23.08.2010, therefore, petitioner lacks requisite qualifications on the date of her appointment, which is 14.09.2010. Learned counsel appearing for respondents however dispute this submission and they submit that respondent no.4 possessed all requisite qualification on the date of her appointment. They further submit that even if it is assumed that respondent no.4 had not passed T.E.T, on the date of her appointment, then also her appointment cannot be said to be illegal in view of the provision contained in first and second proviso to Section 23 (2) of the Right of Children to Free and Compulsory Education Act, 2009.

7. Heard learned counsel for the parties and perused the record.

8. I find substance in the contention made on behalf of the respondents that even if petitioner has not passed T.E.T on the date of her appointment, then also her appointment would be protected in view of provisions contained in first and second proviso to Section 23 (2) of the aforesaid Act.

9. Section 23 of the aforesaid Act is reproduced below for ready reference:-

"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 it 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 sub- section (1), shall acquire such minimum qualifications within a period of five years.

[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.] (3) The salary and allowances payable to, and the terms and conditions of service of, teacher shall be such as may be prescribed."

10. From perusal of the impugned order, it is revealed that petitioner's appeal was dismissed on the ground that the condition of passing T.E.T. as per notification dated 23.08.2010 was not applicable in the State of Uttarakhand. This reasoning is unsustainable as National Council for Teachers Education has been constituted under a Central Act, which is applicable to State of Uttarakhand also.

11. Since the order passed by the Appellate Authority is based on a wrong premise, therefore, on this short point alone, the writ petition is allowed and the order passed by Appellate Authority is set aside. The matter is remitted back to the Appellate Authority to decide the appeal afresh, in the light of

relevant statutory provision and other attending facts and circumstances of the case. The Appellate Authority is directed to take decision in the matter as early as possible, but not later than three months from the date of production of certified copy of this order.

12. It goes without saying that respondent no.4 shall also be heard by the Appellate Authority before taking any decision.

(MANOJ KUMAR TIWARI, J.) Shubham