Dismissed

Bharat Raj Singh v. District Basic Education Officer and Others

Allahabad HC6 Feb 2019SPLA/868/2011

Case brief

AI extract

What is this about?

The Full Bench dismissed the intra-court appeal against a Single Judge order quashing an illegal appointment of a petitioner as Assistant Teacher. The court held that the petitioner did not possess the requisite teaching qualification (B.Ed. was not equivalent to prescribed B.T.C./J.T.C.) and the appointment was void ab initio.

What the court decided

AI extract

Bharat Raj Singh Vs District Basic… — Pension and Retirement Benefits | Allahabad HC (2019)

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Court No. - 34

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Case :- SPECIAL APPEAL No. - 868 of 2011

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Appellant :- Bharat Raj Singh Respondent :- District Basic Education Officer And Others Counsel for Appellant :- G.K. Singh,K.C. Kishan Srivastava,Rakesh Kumar Srivastava,Sunil Kumar Srivastava,V.K. Singh Counsel for Respondent :- C.S.C.,P.K. Bhardwaj

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Hon'ble Sudhir Agarwal,J. Hon'ble Rajendra Kumar-IV,J.

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Heard learned Counsel for the parties and perused the record.

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This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as 'Rules 1952') has arisen from judgment dated 04.04.2011 passed by learned Single Judge in Civil Misc. Writ Petition (A) No.47203 of 2004 whereby writ petition has been disposed of holding that petitioner-appellant did not possess requisite qualification for appointment on the post of Assistant Teacher in Junior High School as prescribed in Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978 (hereinafter referred to as 'Rules 1978'), inasmuch as, petitioner possessed the qualification i.e. B.A. and B.Ed. Rules prescribed teaching qualification for appointment of Assistant Teacher in Junior High School which are relevant i.e. B.T.C., J.T.C., H.T.C. etc. and B.Ed. is not a qualification equivalent to B.T.C., J.T.C., H.T.C . etc.

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Learned Single Judge has followed the judgments passed by Court in Mohd. Sartaj versus State of U.P. and others, 2006 JT (3) 331 and also in Pramod Kumar versus U.P. Secondary Education Services Commission and others, 2008 (4) ALJ 207.

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The facts in brief giving rise to writ petition are that Poorva Madhyamik Vidyalay, Kuddupur, Jaunpur (hereinafter referred to as 'School') is a Junior High School recognized by Board of Basic Education

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(hereinafter referred to as 'Board') under the provisions of U.P. Basic Education Act, 1972 (hereinafter referred to as 'Act, 1972') and rules framed thereunder. The school is in grant-in-aid and for the purpose of payment of salary to its teachers and employees, it is governed by provisions of U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 (hereinafter referred to as 'Act, 1978'). One Vishwapal Vishwakarma, Assistant Teacher, retired causing substantive vacancy, hence Committee of Management vide resolution dated 22.12.2003 decided to fill in the said vacancy as per rules. Vacancy was advertised in Daily Newspaper 'Tarun Mitra' dated 08.02.2004 pursuant whereto an interview was held and selection was made. Petitioner was selected thereafter letter of appointment was issued on 18.02.2004.

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It is not disputed before us that petitioner-appellant possessed qualification of B.A. and B.Ed. However, Rule 4 of Rules 1978, as it was at the time when advertisement was made and petitioner was appointed, provided minimum qualification for appointment of Assistant Teacher in a recognized School and reads as under :-

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“4. Minimum qualification. -

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(1) The minimum qualifications for the post of Assistant Teacher of recognised school shall be Intermediate Education of the Board of High School and Intermediate Education, Uttar Pradesh or equivalent examination (with Hindi and a teacher's training course recognised by the State Government or the Board such as Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training).

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(2) The minimum qualifications for the appointment to the post of Head-master of a recognized school shall be as follows-

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(a) A degree from a recognized University or an equivalent examination recognized as such.

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(b) A teacher's training course recognised by the State Government or the Board, such as Hindustani Teaching Certificate, Junior Teaching Certificate, Certificate of

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Training or Basic Teaching Certificate; and

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Further Rule 5 provides that no person shall be appointed as Assistant Teacher, if he/she does not possess minimum qualification prescribed for such post. Rule 5 of Rules, 1978 read as under:-

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Eligibility for appointment.- No person shall be appointed as Headmaster or Assistant Teacher in substantive capacity in any recognised school, unless -

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(a) he possess the minimum qualification prescribed for such post;

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(b) he is recommended for such appointment by the Selection Committee.

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It is evident from aforesaid Rules that B.Ed. is not one of the training qualification prescribed under Rule 4 making a person eligible for appointment to the post of Assistant Teacher. That being so, in view of embargo created by Rule 5 of Rules, 1978, no person could have been appointed if he/she does not possess minimum qualification prescribed for such post. The consequences that petitioner did not possess requisite qualification for appointment to the post of Assistant Teacher on the date he was so appointed, hence his appointment is patently illegal.

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An appointment lacking statutory minimum qualification is void ab initio. In Dr. Bhanu Prasad Panda Vs. The Chancellor, Sambalpur University & Ors. AIR 2001 SC 3324 Court held that eligibility qualification cannot be ignored. It was reiterated in Mohd. Sohrab Khan Vs. Aligarh Muslim University & Ors. JT 2009 (2) SC 666.

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9 . In Mohd. Sartaj & Anr. Vs. State of U.P. & Ors. AIR 2006 SC 3492 , Court said:

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"It is settled law that the qualification should have been seen which the candidate possessed on the date of

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recruitment and not at a later stage unless rules to that regard permit it.”

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Court further held that if an appointment is void ab initio, an incumbent is neither entitled to hold the post nor claim salary.

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In Rakesh Kumar Sharma Vs. Govt. of NCT of Delhi and Ors. (2013) 11 SCC 58 Court said :

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"There is no obligation on the court to protect an illegal appointment. Extraordinary power of the court should be used only in an appropriate case to advance the cause of justice and not to defeat the rights of others or create arbitrariness. Usurpation of a post by an ineligible candidate in any circumstance is impermissible."

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In State of Uttar Pradesh & Ors. Vs. Anand Kumar Yadav & Ors. 2017 (8) SCALE 220 , Supreme Court affirmed judgment of this Court holding that essential qualification must be held by the person on the date of entering into service and experience gained by such persons can never be construed as a substitute for an essential qualification that is statutorily prescribed.

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In Ashok Kumar Sonkar Vs. Union of India and others (2007) 4 SCC 54, Court said :

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"Indisputably, the appellant herein did not hold the requisite qualification as on the said cut-off date. He was, therefore, not eligible therefore."

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In Pramod Kumar Vs. U.P. Secondary Education Services Commission and Ors. (2008) 7 SCC 153 , Court said :

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"....Appellant, however, has filed a writ application for issuance of or in the nature of a writ of mandamus. He, therefore, must establish existence of a legal right in himself and a corresponding legal duty in the State. If he did not possess the requisite qualification to hold a post, he could not have any legal right to continue.”

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In view thereof, we find no manifest error in the order impugned in the appeal.

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The appeal, therefore, lacks merits and is dismissed. Order Date :- 6.2.2019 I.A.Siddiqui

Bharat Raj Singh v. District Basic Education Officer and Others

Case brief

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Bharat Raj Singh v. District Basic Education Officer and Others

Case brief

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