Allowed

Krishna Mohan Mall v. State of U.P. and 3 Others

Allahabad HC27 Aug 2021WRIA/3290/2021

Case brief

AI extract

What is this about?

Petitioner challenged rejection of his appointment as Head Master for alleged lack of five years experience after qualifying TET. Court held experience runs from teacher tenure, not TET date, set aside rejection and directed salary release.

What did the court decide?

Impugned orders set aside; petitioner entitled to salary from 08.06.2019 with 6.5% interest if not paid within two months.

Krishna Mohan Mall Vs State of U.P. and 3 Others — Education and Admissions | Allahabad HC (2021)

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Court No. - 2

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Case :- WRIT - A No. - 3290 of 2021

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Petitioner :- Krishna Mohan Mall Respondent :- State of U.P. and others Counsel for Petitioner :- Pramod Kumar Dubey, Radha Kant Ojha (Senior Adv) Counsel for Respondent :- C.S.C., Shailendra Singh

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Hon'ble Suneet Kumar,J.

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Heard Sri Radha Kant Ojha, learned Senior Advocate, assisted by Sri Pramod Kumar Dubey, learned counsel for the petitioner, learned Standing Counsel, appearing for State- respondents and Sri Shailendra Singh, learned counsel appearing for fourth respondent.

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By means of the instant petition, petitioner is assailing the order dated 23.11.2020, passed by third respondent, District Basic Education Officer, Gorakhpur, whereby, the selection of the petitioner as Head Master has been set aside on the ground that petitioner does not fulfil the requisite qualification.

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Laghu Madhyamik Vidyalaya, Gonarpura, Rampur, Goplapur, Gorakhpur, (for short ‘Institution’) is a recognized institution under the Basic Education Act, 1972 (for short 'Act, 1972'). The institution is in grant-in-aid. The service conditions of the teachers is governed by U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (in short "Rules, 1978"). On the occurrence of vacancy of the post of Head Master, the fourth respondent sought approval from the third respondent for filling up the post. The approval was granted vide communication dated 03.01.2019. Pursuant thereof, the post was advertised in two widely circulated newspapers on 19.01.2019. The selection/ interview was held on 19.02.2019, in the presence of Observer appointed by third respondent. As per Rules, 1978, name of three candidates, who secured highest marks, were recommended by the Selection

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committee. Awaiting approval of third respondent, petitioner came to be appointed vide letter dated 08.06.2019. Pursuant thereof, petitioner jointed the post of Head Master on 14.06.2019. The third respondent did not grant financial approval, consequently, petitioner approached this Court by filing a petition being Writ Petition No. 614 of 2020, which came to be disposed of on 17.01.2020, directing the third respondent to take a decision. In compliance thereof, the impugned order has been passed cancelling appointment of the petitioner on the sole ground that petitioner is not qualified, for the reason that petitioner had not acquired five years experience, as mandated under Rule 4 of Rules, 1978, after having qualified the Teachers Eligibility Test (for short 'TET').

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It is submitted by learned counsel for the petitioner that the petitioner qualified TET 2013-14 and the result thereof was declared on 24.05.2014. The stand taken by third respondent is that petitioner's experience certificate from a recognized institution is for the period 01.07.2013 to 13.11.2018. In other words, it is stated that since five years service experience would commence with effect from 24.05.2014, i.e. the date of qualifying TET, therefore, the petitioner would lack five years experience on the date of his appointment.

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In the counter affidavit, the stand taken by the respondents is that Rules, 1978, came to be amended vide Government notification dated 05.12.2012. The U.P. Recognized Basic (Junior High Schools) (The Appointment and Terms and Conditions of Teachers (VIth Amendment) Rules, 2012, incorporated TET as an essential qualification. It is further stated that pursuant thereof TET was conducted for the year 2013-14 and the certificates were issued on 24.12.2014. In this backdrop, it is submitted that, in view of the amended rules, TET became an essential qualification, since petitioner having qualified TET on 24.05.2014 would not be eligible, lacking five years of experience after acquiring TET. Para8 of the counter affidavit is extracted:

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"8. That the petitioner for the selection on the post of Head Master has filed the experience certificate of Swami Vidyanand Paramhans Vikramajeet Srinet Purva Madhyamik Vidyalaya, Sant Kabir Nagar dated 03.12.2018 in which he has mentioned himself as Assistant Teacher (Science) from 01.07.2013 upto 30.11.2018 and had teaching work from Class-VI upto Class-VIII of Math and Science. At the time of selection on the post of Head master under Rule-4(2) (Ga) of U.P. Junior High School (payment of salary of teachers and employees) Act, 1978 as amended, 5 years teaching experience in any recognized school has been mentioned. It is relevant to mention here that the Govt. by Govt. order No. 1301/79-6-201228(35)/2001, dated 05.12.2012 U.P. recognized Basic Junior High School (the appointment and terms and conditions of teachers) (VIth Amendment) Rules, 2012 has in Rule-4(1) and passed the order in which for the selection on the post of Assistant Teacher has mentioned the necessary qualification for passing the Teachers Eligibility Test organized by the Govt. of U.P. or Govt. of India. It is clear that after the Govt. Order dated 05.12.2012 to pass Teachers Eligibility Test is necessary qualification has been included. The petitioner was passed in the teachers Eligibility Test year 2013-14, examination dated 22-23, Feb., 2014 the certificate issued on 24.05.2014 passed has been mentioned in the records. The petitioner prior to pass the Teachers Eligibility Test has submitted the experience certificate of the aforesaid institution on the post of Assistant Teacher. On that time to pass the Teachers Eligibility Test was a necessary qualification so the selection/appointment on the post of Assistant Teacher of the petitioner is totally illegal against the provisions of Rule-4(1) of U.P. recognized Basic Junior High School (the appointment and terms and conditions of teachers) Rules, 1978 as amended. In such

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situation under the provisions of Rule-4(2) the selection on the post of Assistant Teacher of the petitioner automatically become null and void."

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In rebuttal, learned counsel for the petitioner submits that the Right of Children to Free and Compulsory Education Act, 2009 (for short "Act, 2009") was enacted by Parliament which uniformly apply to the institutions imparting education from Class 1 onwards in the entire country. The National Council for Children Education (for short "NCTE") was notified to lay down minimum qualification for a person to be eligible for appointment as Teacher in Class 1 to 8. The NCTE in exercise of power under Sub-section (1) of Section 23 of Act, 2009, vide notification dated 23.08.2010, notified the qualifications for appointment as a Teacher. TET conducted by appropriate Government in accordance with guidelines framed by NCTE was included as an essential qualification, apart from other essential qualification.

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Having regard to the time gap after the notification of the NCTE and the respective State Government, accordingly amending the Rules, the Parliament amended Act, 2009, vide Right of Children to Free and Compulsory Education (Amendment) Act, 2017 (for short "Amendment Act 2017") notified in August, 2017, wherein, a proviso came to be added in Sub-section (2) of Section 23. Section-2 of the Amendment Act, 2017, reads thus:

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"2. In the Right of Children to Free and Compulsory Education Act, 2009, in Section 23, in sub-section (2), after the proviso, the following proviso shall be inserted, namely:-

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"Provided further that every teacher appointed or in position as on the 31st March, 2015, who does not possess minimum qualification as laid down under sub-section (1), shall acquire such minimum qualifications within a period of four years from the date of

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commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017."

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In view thereof, the candidates, who had not acquired or did not possess the minimum qualification notified by NCTE in 2010, were allowed further period of four years from the date of commencement of Amendment Act, 2017, to acquire the requisite essential qualification.

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Admittedly, the petitioner acquired the qualification of TET in 2014. The Amendment Act, 2017, on careful reading, does not mandate that the experience of any teacher would commence from the date of qualifying the TET. However, Sub-clause-(c) of Sub-rule-(2) of Rule-4 of Rules, 1978, prescribes minimum qualification, which inter alia, mandates that minimum qualifications for the appointment to the post of Head Master of a recognized school shall be five years teaching experience in a recognized school.

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On the conjoint reading of the provisions, including the minimum qualification prescribed under Sub-clause-(c) of Sub-rule-(2) of Rule-4 of Rules, 1978, the requirement is that qualification of Assistant Teacher, apart from having qualified TET, he must have experience of five years teaching in a recognized school. Rule nowhere mandates that experience would run on acquiring the TET qualification. In other words, a teacher having five years teaching experience in a recognized school would be eligible for the post of Head Master, provided he has acquired the TET certificate as mandated by the NCTE.

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I have gone through the impugned order carefully with the assistance of learned counsels for the parties. The sole reason assigned by third respondent in rejecting the appointment of the petitioner on the post of Head Master is that petitioner lacked five years teaching experience after acquiring TET qualification. It is not disputed in the impugned order that the petitioner has five years experience from recognized school. In

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view thereof, the reasoning assigned by third respondent that petitioner lacked essential qualification cannot be upheld.

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Accordingly, the writ petition is allowed . Impugned orders dated 27.09.2019, 24,06.2020 and 23.11.2020 are set aside and quashed. Petitioner is entitled to receive salary from the State exchequer for the post of Head Master. The respondents are directed to release the salary of the petitioner with effect from 08.06.2019, within two months from the date of production of a copy of this order, failing which petitioner shall be entitled to simple interest at the rate of 6.5 per cent per annum from the due date.

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Order Date :- 27.8.2021 P. Sri.

Krishna Mohan Mall v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Krishna Mohan Mall v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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