Special appeal against dismissal of writ petition challenging cancellation of appointment due to lack of qualification. Court held appointment made under stayed interim order not valid post-Supreme Court ruling quashing the stay. Subsequent laws did not salvage appointment.
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RESERVED
Court No. - 2
Case :- SPECIAL APPEAL No. - 387 of 2019
Appellant :- Krishna Kumar Shukla And Anr. Respondent :- State Of U.P. Thru. Secy. Basic Education Lko. And Ors.
Counsel for Appellant :- Laltaprasad Misra,Prafulla Tiwari Counsel for Respondent :- C.S.C.,Ghaus Beg
Hon'ble Devendra Kumar Upadhyaya,J. Hon'ble Subhash Vidyarthi,J.
1. Proceedings of this special appeal have been instituted under Chapter VIII Rule 5 of the Rules of the Court questioning the judgment and order dated 12.07.2019 passed by the learned Single Judge whereby Writ Petition No.260 (S/S) of 2014 filed by the appellants-petitioners has been dismissed.
2. The aforesaid writ petition was filed by the appellantspetitioners with the prayer to quash the order dated 17.12.2013 passed separately in case of these two appellants by the District Basic Education Officer, Bahraich, whereby their appointment made on the post of Assistant Teacher in primary school run and managed by Uttar Pradesh Basic Shiksha Parishad has been cancelled. Another prayer made in the writ petition was that the respondents may be directed to reinstate the appellantspetitioners in service with all consequential benefits as admissible to the post of Headmaster, including continuity in service.
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Rai, learned Additional Chief Standing Counsel representing the State-respondents and Shri Ghaus Beg, learned counsel representing the District Basic Education Officer, Bahraich and perused the records available before us on this special appeal.
4. Before we delve into the submissions made by the learned counsel representing the respective parties, it would be appropriate to note certain facts, which are essential for appropriate adjudication of the issues involved in this special appeal. 5. An advertisement was issued by the District Basic Education Officer, Bahraich on 11.11.1999 inviting applications for appointment to the post of Assistant Teacher in schools run and managed by U.P. Basic Shiksha Parishad from amongst the candidates who had passed part of B.T.C. Examination 1999 from District Institute of Education and Training, Payagpur, Bahraich, from amongst those who had passed regular B.T.C Examination and Special B.T.C. The appellants-petitioners did not have any of the training qualifications as mentioned in the advertisement dated 11.11.1999; rather they were having a Diploma in Education Pariksha awarded to them from an Institute at Madhya Pradesh where training was imparted through correspondence course. However, pursuant to the advertisement, they made their applications and when their candidature was not being considered, they filed Writ Petition No.3792 (S/S) of 2000. Learned Single Judge passed an interim order in Writ Petition No.3792 (S/S) of 2000 filed by the appellants-petitioners on 10.08.2000 directing the respondents to consider the case of the appellants-petitioners for appointment on the post in question.
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order/circular was issued acknowledging equivalence of "cqfu;knh izf'k{k.k i=ksaikf/k" a qualification, which at the relevant point of time was obtained through correspondence course in the State of Madhya Pradesh to a regular B.T.C. training in State of Uttar Pradesh. The circular is on record at page 80 of the special appeal which contains list of the training courses which were acknowledged as having equivalence to the regular B.T.C. training course in the State of U.P. which includes "cqfu;knh izf'k{k.k i=ksaikf/k" of the State of Madhya Pradesh.
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there was no stay order passed by Hon'ble Supreme Court against the said judgment hence the judgment was binding.
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10.08.2000 passed by this Court in Writ Petition No.3792 (S/S) of 2000. Thus, it is abundantly clear that the appointment order dated 10.02.2003 was a conditional order and its continuance depended on the decision of Hon'ble Supreme Court in the special leave petition filed against the interim order dated 10.08.2000 passed by the learned Single Judge.
13. Once the judgment of Hon'ble Supreme Court was rendered on 12.02.2008, a show cause notice was issued to the appellantspetitioners on 22.05.2013 by the Basic Education Officer, Bahraich requiring from the appellants-petitioners to show cause as to why their appointments may not be cancelled in compliance of the judgment of Hon'ble Supreme Court, dated 12.02.2008. Another notice was again issued on 17.06.2013 to the appellantspetitioners to furnish their explanation. On record there is yet another notice dated 16.11.2013 requiring the appellantspetitioners to submit their explanation as to why their appointments may not be cancelled.
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17.12.2013 passed by the District Basic Education Officer, Bahraich. We may also note at this juncture that having been appointed on the post of Assistant Teachers pursuant to the interim order dated 10.08.2000, the appellants-petitioners continued to work on the post of Assistant Teacher and subsequently they were also promoted on the post of Headmaster on 18.10.2011. It is, thus, these two orders dated 10.03.2003 which were challenged by the appellants-petitioners by instituting the proceedings of Writ Petition No.260 of 2014 which has been dismissed by the judgment and order dated 12.07.2019 passed by the learned Single Judge, which is under appeal before us.
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and order unsustainable. Further submission of the learned counsel for the appellants-petitioners is that on account of subsequent developments where the judgment rendered by the Hon'ble Supreme Court in the case of Upendra Rai (supra) was referred to a Larger Bench, dictum of Upendra Rai's case (supra) decided by Hon'ble Supreme Court, lost its efficacy on account of subsequent legislation and also on account of the fact that reference to the Larger Bench was rendered infructuous.
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the NCTE as the academic authority to lay down the minimum qualifications for a person to be eligible for appointment as a teacher in terms of the provisions contained in section 23(I) of Right of Children to Free and Compulsory Education Act, 2009. Submission further is that the NCTE thereafter laid down the qualification by means of a notification dated 29.07.2011 and since the appellants-petitioners fulfill such qualification as laid by NCTE by means of the notification dated 29.07.2011 as such cancellation of their appointment made on 17.12.2013 cannot be said to be justified. It has been argued that this aspect of the matter has been ignored by the learned Single Judge.
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NCTE by means of the notification dated 29.07.2011 but also on account of operation of section 12-A of NCTE Act.
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appointment of the appellants-petitioners is to be governed in terms of the law applicable and in vogue at the time of their appointment.
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B.T.C. courses to the B.T.C. course run by the institutions of the State of U.P. Simultaneously, Hon'ble Supreme Court also allowed the Civil Appeal No.1234 to 1236 of 2008 and one of these civil appeals related to challenge made to the interim order dated 10.08.2000 passed by this Court in the writ petition filed earlier by the appellants-petitioners, namely, Writ Petition No.3792 (S/S) of 2000, pursuant to which the appellantspetitioners were issued the appointment orders on 10.02.2003.
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way of notification. It is also true that government of India by issuing notification dated 31.03.2010 authorized NCTE as the academic authority in terms of section 23 of the RTE Act. It is also true that qualifications for appointment as teacher have been laid down by NCTE by framing and notifying the same by means of a notification dated 29.07.2011. However, even if the appellants-petitioners fulfill the qualification prescribed by the NCTE by means of the notification dated 29.07.2011, in our considered opinion such fulfillment of qualification will not save their appointment made pursuant to the advertisement issued on 11.11.1999. Eligibility qualification is to be seen as are in vogue at the time of recruitment, process of which generally commences with the issuance of the advertisement. Admittedly, on the date of advertisement i.e. on 11.11.1999 the qualification which was prescribed for appointment as Assistant Teacher was not possessed by the appellants-petitioners for the simple reason that they were having teacher training qualification awarded to them by an institute of State of Madhya Pradesh which ran the correspondence course. By virtue of the government order dated 11.08.1997 equivalence of the qualification possessed by the appellants-petitioners on the date of advertisement to the BTC training imparted by the institutions in the State of Uttar Pradesh stood cancelled. It is only on account of the interim order dated 10.08.2000 that the appellants-petitioners were given appointment by the District Basic Shiksha Adhikari on 10.02.2003 and the interim order dated 10.08.2000 was passed on the basis of the judgment rendered by a Division Bench of this court in Special Appeal in the case of Upendra Rai (supra) on 18.02.2000. However, once the said division bench judgment dated 18.02.2000 passed by this Court was set aside by Hon'ble Supreme Court by means of the judgment dated 12.02.2008 and
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interim order dated 10.08.2000 was also set aside by Hon'ble Supreme Court by the said judgment dated 12.02.2008, in our considered opinion, it cannot be said that the appellantspetitioners fulfilled the requisite qualification as prescribed.
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which were holding the field prior to such legislations. Learned Single Judge has also observed that the appellants-petitioners were not holding the prescribed qualification for the post of Assistant Teacher under the 1981 Service Rules, hence, their appointments could not have been made but for the interim order passed by this Court on 10.08.2000. Learned Single Judge has also observed that that the said interim order dated 10.08.2000 has already been set aside by the Hon'ble Supreme Court and since at the relevant point of time, the appellants-petitioners were not fulfilling the requisite minimum qualification, section 12-A of NCTE Act will be of no help to them only on account of the fact that they were continuing when the said amendment in NCTE Act was made.
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dated 11.08.1997, however, once the judgment by Hon'ble Supreme Court was rendered on 12.02.2008 reported in (2008) 3 SCC 432, the Government Order dated 11.08.1997 shall apply in full force to the facts of this case.
Order Date :- 3.3.2023 akhilesh/
(Subhash Vidyarthi, J.) (D. K. Upadhyaya, J.)
Digitally signed by :- AKHILESHWAR KUMAR High Court of Judicature at Allahabad, Lucknow Bench
3 issues framed by the court
Whether the appointment of appellants made pursuant to an interim order subsequently set aside by the Supreme Court can be saved by subsequent legislation like the NCTE Act or RTE Act.
Whether the proviso in Section 12-A of the NCTE Act, 2011 protects the continuance of appointments made in compliance with an interim order that was quashed on the ground of non-fulfillment of qualifi
Whether the law applicable at the time of a vacant post advertisement governs eligibility for appointment even if qualifications are acquired later.
Colour shows how this judgement treated each authority
Upendra Rai vs. State of Uttar Pradesh and othersExplained¶19
Upendra Rai vs. State of Uttar Pradesh and others (2000) 2 UPLBEC 1340
Basic Education Board, U.P. vs. Upendra Rai and othersDistinguished¶32
Basic Education Board, U.P. vs. Upendra Rai and others (2008) 3 SCC 432 · Who else cites this
Ram Surat Yadav vs. State of U.P. and othersApplied¶32
Ram Surat Yadav vs. State of U.P. and others, reported in 2014 (1) ADJ (FB)
4 provisions across 4 enactments
Krishna Kumar Shukla And Anr.
State Of U.P. Thru. Secy. Basic Education Lko. And Ors.
Devendra Kumar Upadhyaya
Subhash Vidyarthi
As recorded by the court registry
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