पहले से कार्यरत अध्यापकों पर टीईटी लागू न होने सम्बन्धी मा0 उच्च न्यायालय का आदेश हुआ अपलोड, कोर्ट आर्डर देखें
पहले से कार्यरत अध्यापकों पर टीईटी लागू न होने सम्बन्धी मा0 उच्च न्यायालय का आदेश हुआ अपलोड, कोर्ट आर्डर देखें
Reserved on: 14.11.2018 Delivered on:22/02/2019
Court No. - 24
Case :- SERVICE SINGLE No. - 22454 of 2018
Petitioner :- Om Prakash Tripathi
Respondent :- State Of U.P. Thru. Secy. Basic Edu. And Ors.
Counsel for Petitioner :- Santosh Kumar Tripathi,Shiv Kumar
Counsel for Respondent :- C.S.C.,P.K. Singh Bisen,Vinay Misra
Hon'ble Irshad Ali,J.
(1) Heard Sri Santosh Kumar Tripathi, learned counsel for the petitioner, learned Standing Counsel on behalf of respondent No.1, Sri P.K. Singh Bisen, learned counsel for respondent No.2 and Sri Vinjay Misra, learned counsel for respondent no.3.
(2) Brief fact of the case is that the institution namely Mata Badal Srikrishna Laghu Madhyamik Vidyalaya, Dhamohan, Post Kota Bhawaniganj, Babaganj, District Pratapgarh is a recognized institution under the provisions of U.P. Basic Education Act, 1972. The institution is receiving grant in aid from the State Government, therefore, the provisions of Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 in as much as U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978 (for short, "1978 Rules") are applicable to the said institution.
(3) A vacancy on the post of Head Master in the aforesaid institution was lying vacant and the work of the institution was suffering a lot. The Committee of Management of the institution resolved to fill up the aforesaid post by way of direct recruitment.
(4) The Manager of the institution submitted an application before the District Basic Education Officer to accord permission to initiate selection proceeding on the post of Head Master vide application dated 03.04.2018. On perusal of the material placed along with the application, the District Basic Education Officer, Pratapgarh passed an order on 25.04.2018, whereby permission was accorded to initiate selection proceeding to fill up the post of Head Master of the institution.
(5) The Manager of the institution issued an advertisement in widely circulated news papers Dainik Aaj and Rashtriya Sahara on 27.04.2018. The petitioner having qualification of M.A. (Sociology) and B.Ed. was fully eligible and qualified, applied in pursuance to the aforesaid advertisement issued in the news papers.
(6) The petitioner was initially working as Assistant Teacher in Ram Sewak Inter College, Dhamoha, Babaganj, District Pratapgarh since July, 2007 and subsequently, he was granted appointment on the post of Principal in the year 2011 and since then, he is performing duties on the post of Principal in the aforesaid inter college.
(7) The petitioner vide application dated 03.05.2018, applied for grant of selection and appointment on the post of Head Master in Mata Badal Srikrishna Laghu Madhyamik Vidyalaya, Dhamohan, Post Kota Bhawaniganj, Babaganj, District Pratapgarh. The Manager of the institution requested to the District Basic Education Officer to send his nominee to be present in the Selection Committee. When no nominee was appointed by the District Basic Education Officer to be present in the Selection Committee, then again on 23.06.2018, request was made by the Manager of the Committee of Management of the institution to the District Basic Education Officer, Pratapgarh to send his nominee/observer but no heed was paid to the request of the Manager of the Committee of Management.
(8) On the date fixed i.e. on 27.06.2018, interview was held, wherein the petitioner along with other candidates appeared before the interview Board. The Selection Committee on the basis of quality point marks, recommended the selection of the petitioner by placing him at serial No.1 in the merit list. The Committee of Management on the basis of recommendation of the Selection Committee, issued appointment letter to the petitioner on 29.06.2018 and in pursuance thereof the petitioner joined on the said post in the institution.
(9) The papers regarding selection and appointment of the petitioner were submitted before the District Basic Education Officer for grant of approval for the purposes of disbursement of salary to the petitioner on 28.06.2018.
(10) The District Basic Education Officer, District Pratapgarh passed an order on 07.07.2018, whereby the appointment of the petitioner has been held to be illegal holding that the petitioner is not eligible and qualified for the post of Head Master of a Junior High School on the ground that in accordance with the provisions of 1978 Rules, the qualification of Teachers Eligibility Test (TET) is required in view of the amendment incorporated under the aforesaid rules vide notification issued on 05.12.2012.
(11) Assailing the impugned order dated 07.07.2018, submission of learned counsel for the petitioner is that it is applicable with a prospective effect and does not debar from selection to those candidates, who were not having TET qualification prior to issuance of the notification in making the amendment in Rule 4 of 1978 Rules, which has not been taken into consideration while passing the impugned order. Thus, the order impugned is not sustainable in law.
(12) He next submitted that TET qualification was made compulsory in regard to appointment in primary schools as well as in Junior High Schools by making amendment by issuing notification on 05.12.2012. The petitioner was granted appointment as Assistant Teacher prior to issuance of notification dated 05.02.2012. Thus, the petitioner being eligible and qualified applied for the selection and appointment on the post of Head Master in a Junior High School. Therefore, the requirement of experience of five years, which is necessary for appointment on the post of Head Master, is fulfilled by the petitioner.
(13) He further contended that the petitioner was having required qualification at the time of issuance of advertisement. Thus, the amended provision will not affect his right and the impugned order is per se illegal.
(14) He next submitted that the petitioner was initially appointed as Assistant Teacher/Principal in Ram Sewak Inter College, Dhamoha, Babaganj, District Pratapgarh since July, 2007 and was continuously working. Therefore, the provisions regarding TET qualification are not applicable to the case of the petitioner, in view of the amendment incorporated under Rule 4 (2) of 1978 Rules.
(15) On the other hand, learned Standing Counsel and Sri P.K. Singh Bisen, learned counsel for the respondents on the basis of averment made in the counter affidavit supported the impugned order by pointing out that the same is just and valid and does not suffer from any infirmity or illegality.
(16) Learned Standing Counsel and the counsel appearing for the respondent-District Basic Education Officer, in support of the impugned order, submitted that the impugned order does not suffer from any infirmity or illegality and is just and valid order. The petitioner does not have requisite qualification prescribed under the rules, therefore, the impugned order rejecting the claim of the petitioner for disbursement of salary is just and valid order.
(17) Having heard the rival contentions advanced by learned counsel for the parties, I perused the material placed on record of the writ petition.
(18) To resolve the controversy involved in the present writ petition, amended Rule 4 of 1978 Rules amended vide notification dated 05.12.2012 is being quoted below:
"4. Minimum qualification. - (1) The minimum qualifications for the post of Assistant Teacher of a recognised school shall be a Graduation Degree from a University recognised by U.G.C., and a teachers training course recognized by the State Government or U.G.C. or the Board as follows :-
1. Basic Teaching Certificate.
2. A regular B.Ed. degree from a duly recognized institution.
3. Certificate of Teaching.
4. Junior Teaching Certificate.
5. Hindustani Teaching Certificate, and
Teacher eligibility test passed conducted by the Government of Uttar Pradesh or by the Government of India.
(2) The minimum qualifications for the appointment to the post of head master of a recognized school shall be as follows -
(a) A degree from a recognized University or an equivalent examination recognized as such.
(b) A teacher's training course recognized by the State Government or U.G.C. or Board as follows :-
1. Basic Teaching Certificate.
2. A regular B.Ed. degree from a duly recognized Institution.
3. Certificate of Teaching;
4. Junior Teaching Certificate.
5. Hindustani Teaching Certificate.
(c) Five years teaching experience in a recognized school."
(19) On perusal of the writ petition, it is evident that the advertisement inviting applications for selection and appointment on the post of Head Master was issued on 27.04.2018 and in pursuance thereof, the petitioner was selected in the selection proceeding conducted by the Selection Committee and was issued appointment letter on 29.06.2018.
(20) It is admitted case of the petitioner that he is having the qualification of M.A. (Sociology) and B.Ed. and does not have the qualification of TET.
(21) On perusal of above referred amended Rule 4 of 1978 Rules, the required qualification for appointment on the post of Head Master of a recognized school is as under:
A- A degree from a recognized university or an equivalent examination recognized as such.
B- A teachers training course recognized by the State Government U.G.C or Board as follows:
1- Basic Teaching Certificate.
2- A regular B.Ed. degree from a duly recognized institution.
3- Certificate of Teaching.
4- Junior Teaching Certificate.
5- Hindustani Teaching Certificate.
C- Five year's teaching experience in a recognized school.
(22) In Full Bench's judgment of this Court in the case of Shiv Sharma and others v. State of U.P. and others reported 2013 (6) ADJ 310 (FB), it has been held that Notification dated 23.8.2010 and the qualifications determined by the NCTE would have overriding effect in so far State Legislation Act, Rules or Regulations are in conflict with the notification issued by the NCTE which, therefore, has to be ignored.
(23) The principle has also been reiterated in the subsequent Full Bench's decision rendered in Anand Kumar Yadav and others v. Union of Indian and others reported in 2015 8 ADJ 338 (FB). The decision has been confirmed by the Hon'ble Supreme Court in the case of State of U.P. v. Anand Yadav, 2017 Vol ADJ 173.
(24) While dealing with the aforesaid provisions, the Hon'ble Supreme Court has held that in the State of Uttar Pradesh, the State Government in a clear violation of mandate of Section 23(2), which vests the power to relax the minimum qualifications is in the Central Government has arrogated to its power which it lacks to grant exemption from the mandatory qualification which are laid down by the NCTE in their application to Shiksha Mitra in the State. Parliament has legislated to provide, in no uncertain terms, that any relaxation of the minimum educational qualifications can only be made by the Central Government.
(25) In State of U.P. v. Shiv Kumar Pathak reported in 2017 8 ADJ 164, the question posed before the Supreme Court was with regard to the validity of the decision of the State of Uttar Pradesh in prescribing qualifications for recruitment of teachers at variance with the guidelines of the National Council for Teachers Education (NCTE) dated 11th February, 2011 under Section 12 (d) read with Section 12 A of the National Council for Teachers Education Act, 1993 (NCTE Act) and Section 23 of the Right of Children to Free and Compulsory Act Education, 2009 (RTE Act) on the ground of repugnancy of State Law with the Central law on a subject falling in concurrent list.
(26) In pursuance to the Notification referred hereinabove, the State Government has issued notification dated 27 November, 2017, whereby notifications issued by the National Council for Teacher Education (hereinafter referred to as "N.C.T.E." on 23 August 2010, 29 July, 2011, 12 November 2014 and 28 November 2014, prescribing qualification for the post of Assistant Teacher in Primary Institutions of the State has been incorporated.
(27) The Full Bench of this Court as well as the Supreme Court in the decisions referred hereinabove leaves no room for doubt that the competent authority to determine the essential qualifications for appointment of teachers in primary schools throughout the country, is vested with the N.C.T.E. The notification issued by the N.C.T.E. would apply from the date, on which the qualification was notified by the N.C.T.E. and not from the date on which the N.C.T.E. notifications was incorporated in the State Act or Rules governing appointment and selection of Primary Teacher.
(28) In U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 which was added by way of amendment dated 5.12.2012 prescribing qualifications for the post of Assistant Teachers in addition to other qualifications. It has also been provided that a candidate must have possessed qualification of T.E.T.
(29) Under sub Rule (2) of Rule 4 of the Rules of 1978 it has been provided that essential qualification of possessing T.E.T. is must for the post of Assistant Teacher and Rule 4 sub Rule (2) reveals that the qualification for the post of Head Master is that he should have the qualification of five years of experience from a recognized Institution as a teacher.
(30) In the present case, the petitioner was granted appointment on the post of Assistant Teacher in Ram Sawak Inter College, Dhamoha, Babaganj, District Pratapgarh in July, 2007 prior to amendment incorporated under Rule 4 of the Rules of 1978.
(31) At the relevant point of time, there was no requirement of having T.E.T. qualification for the appointment on the post of Assistant Teacher in the year 2007. First time, amendment was incorporated on 23 August, 2010 and 29 July, 2011 by the N.C.T.E.
(32) On perusal of Rule 4 sub Rule (2), it is reflected that Head Master is the Principle and only such a teacher who has five years experience from a recognized School in addition to other qualifications would be eligible for the post of Headmaster in order to qualify after amendment. A teacher is required to have an essential qualification of T.E.T. after amendment in Rule 4 on 5.12.2012, therefore it flows therefrom that the candidates from the post of Head Master also have possessed the qualification of T.E.T.. The petitioner being appointed prior to the amendment prescribing T.E.T. qualification on the post of Assistant Teacher is not required to have T.E.T. qualification for the post of Head Master.
(33) The District Basic Education Officer, District Pratapgarh while passing the impugned has no where taken into consideration that an Assistant Teacher who has been granted appointment prior to the amendment in Rule 4 of 1978 Rules requires T.E.T. or not.
(34) In the counter affidavit filed by the respondent no.2, the only objection has been raised that the petitioner does not have requisite qualification of T.E.T., therefore, his appointment being contrary to Rule 4 has rightly been rejected vide impugned order dated 7.7.2018.
(35) On over-all consideration of the dispute raised in the present writ petition, this Court found that the only reason has been assigned in rejecting the application of the petitioner that the petitioner does not have requisite qualification of T.E.T. In this regard, this Court has considered the provisions of the amended Rules of 1978 and the judgment passed by this Court as well as by the Supreme Court and has recorded that the T.E.T. qualification is required after incorporation of the amendment under the State-book. The petitioner was granted appointment prior to the date of appointment prescribing the requisite qualification of T.E.T., thus in the opinion of the Court, T.E.T. qualification is not required for the appointment on the post of Assistant Teacher prior to the amendment made under Rule 4 of 1978 Rules.
(36) In view of the non-consideration of the aforesaid aspect of the matter, the impugned order being not sustainable in law is hereby set aside and the writ petition succeeds and is allowed. Respondent no.2 is directed to re-consider the matter in the light of the observations made above and to pass an appropriate reasoned and speaking order in accordance with law within a period of two months from the date of production of a certified copy of this order.
Reserved on: 14.11.2018 Delivered on:22/02/2019
Court No. - 24
Case :- SERVICE SINGLE No. - 22454 of 2018
Petitioner :- Om Prakash Tripathi
Respondent :- State Of U.P. Thru. Secy. Basic Edu. And Ors.
Counsel for Petitioner :- Santosh Kumar Tripathi,Shiv Kumar
Counsel for Respondent :- C.S.C.,P.K. Singh Bisen,Vinay Misra
Hon'ble Irshad Ali,J.
(1) Heard Sri Santosh Kumar Tripathi, learned counsel for the petitioner, learned Standing Counsel on behalf of respondent No.1, Sri P.K. Singh Bisen, learned counsel for respondent No.2 and Sri Vinjay Misra, learned counsel for respondent no.3.
(2) Brief fact of the case is that the institution namely Mata Badal Srikrishna Laghu Madhyamik Vidyalaya, Dhamohan, Post Kota Bhawaniganj, Babaganj, District Pratapgarh is a recognized institution under the provisions of U.P. Basic Education Act, 1972. The institution is receiving grant in aid from the State Government, therefore, the provisions of Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 in as much as U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978 (for short, "1978 Rules") are applicable to the said institution.
(3) A vacancy on the post of Head Master in the aforesaid institution was lying vacant and the work of the institution was suffering a lot. The Committee of Management of the institution resolved to fill up the aforesaid post by way of direct recruitment.
(4) The Manager of the institution submitted an application before the District Basic Education Officer to accord permission to initiate selection proceeding on the post of Head Master vide application dated 03.04.2018. On perusal of the material placed along with the application, the District Basic Education Officer, Pratapgarh passed an order on 25.04.2018, whereby permission was accorded to initiate selection proceeding to fill up the post of Head Master of the institution.
(5) The Manager of the institution issued an advertisement in widely circulated news papers Dainik Aaj and Rashtriya Sahara on 27.04.2018. The petitioner having qualification of M.A. (Sociology) and B.Ed. was fully eligible and qualified, applied in pursuance to the aforesaid advertisement issued in the news papers.
(6) The petitioner was initially working as Assistant Teacher in Ram Sewak Inter College, Dhamoha, Babaganj, District Pratapgarh since July, 2007 and subsequently, he was granted appointment on the post of Principal in the year 2011 and since then, he is performing duties on the post of Principal in the aforesaid inter college.
(7) The petitioner vide application dated 03.05.2018, applied for grant of selection and appointment on the post of Head Master in Mata Badal Srikrishna Laghu Madhyamik Vidyalaya, Dhamohan, Post Kota Bhawaniganj, Babaganj, District Pratapgarh. The Manager of the institution requested to the District Basic Education Officer to send his nominee to be present in the Selection Committee. When no nominee was appointed by the District Basic Education Officer to be present in the Selection Committee, then again on 23.06.2018, request was made by the Manager of the Committee of Management of the institution to the District Basic Education Officer, Pratapgarh to send his nominee/observer but no heed was paid to the request of the Manager of the Committee of Management.
(8) On the date fixed i.e. on 27.06.2018, interview was held, wherein the petitioner along with other candidates appeared before the interview Board. The Selection Committee on the basis of quality point marks, recommended the selection of the petitioner by placing him at serial No.1 in the merit list. The Committee of Management on the basis of recommendation of the Selection Committee, issued appointment letter to the petitioner on 29.06.2018 and in pursuance thereof the petitioner joined on the said post in the institution.
(9) The papers regarding selection and appointment of the petitioner were submitted before the District Basic Education Officer for grant of approval for the purposes of disbursement of salary to the petitioner on 28.06.2018.
(10) The District Basic Education Officer, District Pratapgarh passed an order on 07.07.2018, whereby the appointment of the petitioner has been held to be illegal holding that the petitioner is not eligible and qualified for the post of Head Master of a Junior High School on the ground that in accordance with the provisions of 1978 Rules, the qualification of Teachers Eligibility Test (TET) is required in view of the amendment incorporated under the aforesaid rules vide notification issued on 05.12.2012.
(11) Assailing the impugned order dated 07.07.2018, submission of learned counsel for the petitioner is that it is applicable with a prospective effect and does not debar from selection to those candidates, who were not having TET qualification prior to issuance of the notification in making the amendment in Rule 4 of 1978 Rules, which has not been taken into consideration while passing the impugned order. Thus, the order impugned is not sustainable in law.
(12) He next submitted that TET qualification was made compulsory in regard to appointment in primary schools as well as in Junior High Schools by making amendment by issuing notification on 05.12.2012. The petitioner was granted appointment as Assistant Teacher prior to issuance of notification dated 05.02.2012. Thus, the petitioner being eligible and qualified applied for the selection and appointment on the post of Head Master in a Junior High School. Therefore, the requirement of experience of five years, which is necessary for appointment on the post of Head Master, is fulfilled by the petitioner.
(13) He further contended that the petitioner was having required qualification at the time of issuance of advertisement. Thus, the amended provision will not affect his right and the impugned order is per se illegal.
(14) He next submitted that the petitioner was initially appointed as Assistant Teacher/Principal in Ram Sewak Inter College, Dhamoha, Babaganj, District Pratapgarh since July, 2007 and was continuously working. Therefore, the provisions regarding TET qualification are not applicable to the case of the petitioner, in view of the amendment incorporated under Rule 4 (2) of 1978 Rules.
(15) On the other hand, learned Standing Counsel and Sri P.K. Singh Bisen, learned counsel for the respondents on the basis of averment made in the counter affidavit supported the impugned order by pointing out that the same is just and valid and does not suffer from any infirmity or illegality.
(16) Learned Standing Counsel and the counsel appearing for the respondent-District Basic Education Officer, in support of the impugned order, submitted that the impugned order does not suffer from any infirmity or illegality and is just and valid order. The petitioner does not have requisite qualification prescribed under the rules, therefore, the impugned order rejecting the claim of the petitioner for disbursement of salary is just and valid order.
(17) Having heard the rival contentions advanced by learned counsel for the parties, I perused the material placed on record of the writ petition.
(18) To resolve the controversy involved in the present writ petition, amended Rule 4 of 1978 Rules amended vide notification dated 05.12.2012 is being quoted below:
"4. Minimum qualification. - (1) The minimum qualifications for the post of Assistant Teacher of a recognised school shall be a Graduation Degree from a University recognised by U.G.C., and a teachers training course recognized by the State Government or U.G.C. or the Board as follows :-
1. Basic Teaching Certificate.
2. A regular B.Ed. degree from a duly recognized institution.
3. Certificate of Teaching.
4. Junior Teaching Certificate.
5. Hindustani Teaching Certificate, and
Teacher eligibility test passed conducted by the Government of Uttar Pradesh or by the Government of India.
(2) The minimum qualifications for the appointment to the post of head master of a recognized school shall be as follows -
(a) A degree from a recognized University or an equivalent examination recognized as such.
(b) A teacher's training course recognized by the State Government or U.G.C. or Board as follows :-
1. Basic Teaching Certificate.
2. A regular B.Ed. degree from a duly recognized Institution.
3. Certificate of Teaching;
4. Junior Teaching Certificate.
5. Hindustani Teaching Certificate.
(c) Five years teaching experience in a recognized school."
(19) On perusal of the writ petition, it is evident that the advertisement inviting applications for selection and appointment on the post of Head Master was issued on 27.04.2018 and in pursuance thereof, the petitioner was selected in the selection proceeding conducted by the Selection Committee and was issued appointment letter on 29.06.2018.
(20) It is admitted case of the petitioner that he is having the qualification of M.A. (Sociology) and B.Ed. and does not have the qualification of TET.
(21) On perusal of above referred amended Rule 4 of 1978 Rules, the required qualification for appointment on the post of Head Master of a recognized school is as under:
A- A degree from a recognized university or an equivalent examination recognized as such.
B- A teachers training course recognized by the State Government U.G.C or Board as follows:
1- Basic Teaching Certificate.
2- A regular B.Ed. degree from a duly recognized institution.
3- Certificate of Teaching.
4- Junior Teaching Certificate.
5- Hindustani Teaching Certificate.
C- Five year's teaching experience in a recognized school.
(22) In Full Bench's judgment of this Court in the case of Shiv Sharma and others v. State of U.P. and others reported 2013 (6) ADJ 310 (FB), it has been held that Notification dated 23.8.2010 and the qualifications determined by the NCTE would have overriding effect in so far State Legislation Act, Rules or Regulations are in conflict with the notification issued by the NCTE which, therefore, has to be ignored.
(23) The principle has also been reiterated in the subsequent Full Bench's decision rendered in Anand Kumar Yadav and others v. Union of Indian and others reported in 2015 8 ADJ 338 (FB). The decision has been confirmed by the Hon'ble Supreme Court in the case of State of U.P. v. Anand Yadav, 2017 Vol ADJ 173.
(24) While dealing with the aforesaid provisions, the Hon'ble Supreme Court has held that in the State of Uttar Pradesh, the State Government in a clear violation of mandate of Section 23(2), which vests the power to relax the minimum qualifications is in the Central Government has arrogated to its power which it lacks to grant exemption from the mandatory qualification which are laid down by the NCTE in their application to Shiksha Mitra in the State. Parliament has legislated to provide, in no uncertain terms, that any relaxation of the minimum educational qualifications can only be made by the Central Government.
(25) In State of U.P. v. Shiv Kumar Pathak reported in 2017 8 ADJ 164, the question posed before the Supreme Court was with regard to the validity of the decision of the State of Uttar Pradesh in prescribing qualifications for recruitment of teachers at variance with the guidelines of the National Council for Teachers Education (NCTE) dated 11th February, 2011 under Section 12 (d) read with Section 12 A of the National Council for Teachers Education Act, 1993 (NCTE Act) and Section 23 of the Right of Children to Free and Compulsory Act Education, 2009 (RTE Act) on the ground of repugnancy of State Law with the Central law on a subject falling in concurrent list.
(26) In pursuance to the Notification referred hereinabove, the State Government has issued notification dated 27 November, 2017, whereby notifications issued by the National Council for Teacher Education (hereinafter referred to as "N.C.T.E." on 23 August 2010, 29 July, 2011, 12 November 2014 and 28 November 2014, prescribing qualification for the post of Assistant Teacher in Primary Institutions of the State has been incorporated.
(27) The Full Bench of this Court as well as the Supreme Court in the decisions referred hereinabove leaves no room for doubt that the competent authority to determine the essential qualifications for appointment of teachers in primary schools throughout the country, is vested with the N.C.T.E. The notification issued by the N.C.T.E. would apply from the date, on which the qualification was notified by the N.C.T.E. and not from the date on which the N.C.T.E. notifications was incorporated in the State Act or Rules governing appointment and selection of Primary Teacher.
(28) In U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 which was added by way of amendment dated 5.12.2012 prescribing qualifications for the post of Assistant Teachers in addition to other qualifications. It has also been provided that a candidate must have possessed qualification of T.E.T.
(29) Under sub Rule (2) of Rule 4 of the Rules of 1978 it has been provided that essential qualification of possessing T.E.T. is must for the post of Assistant Teacher and Rule 4 sub Rule (2) reveals that the qualification for the post of Head Master is that he should have the qualification of five years of experience from a recognized Institution as a teacher.
(30) In the present case, the petitioner was granted appointment on the post of Assistant Teacher in Ram Sawak Inter College, Dhamoha, Babaganj, District Pratapgarh in July, 2007 prior to amendment incorporated under Rule 4 of the Rules of 1978.
(31) At the relevant point of time, there was no requirement of having T.E.T. qualification for the appointment on the post of Assistant Teacher in the year 2007. First time, amendment was incorporated on 23 August, 2010 and 29 July, 2011 by the N.C.T.E.
(32) On perusal of Rule 4 sub Rule (2), it is reflected that Head Master is the Principle and only such a teacher who has five years experience from a recognized School in addition to other qualifications would be eligible for the post of Headmaster in order to qualify after amendment. A teacher is required to have an essential qualification of T.E.T. after amendment in Rule 4 on 5.12.2012, therefore it flows therefrom that the candidates from the post of Head Master also have possessed the qualification of T.E.T.. The petitioner being appointed prior to the amendment prescribing T.E.T. qualification on the post of Assistant Teacher is not required to have T.E.T. qualification for the post of Head Master.
(33) The District Basic Education Officer, District Pratapgarh while passing the impugned has no where taken into consideration that an Assistant Teacher who has been granted appointment prior to the amendment in Rule 4 of 1978 Rules requires T.E.T. or not.
(34) In the counter affidavit filed by the respondent no.2, the only objection has been raised that the petitioner does not have requisite qualification of T.E.T., therefore, his appointment being contrary to Rule 4 has rightly been rejected vide impugned order dated 7.7.2018.
(35) On over-all consideration of the dispute raised in the present writ petition, this Court found that the only reason has been assigned in rejecting the application of the petitioner that the petitioner does not have requisite qualification of T.E.T. In this regard, this Court has considered the provisions of the amended Rules of 1978 and the judgment passed by this Court as well as by the Supreme Court and has recorded that the T.E.T. qualification is required after incorporation of the amendment under the State-book. The petitioner was granted appointment prior to the date of appointment prescribing the requisite qualification of T.E.T., thus in the opinion of the Court, T.E.T. qualification is not required for the appointment on the post of Assistant Teacher prior to the amendment made under Rule 4 of 1978 Rules.
(36) In view of the non-consideration of the aforesaid aspect of the matter, the impugned order being not sustainable in law is hereby set aside and the writ petition succeeds and is allowed. Respondent no.2 is directed to re-consider the matter in the light of the observations made above and to pass an appropriate reasoned and speaking order in accordance with law within a period of two months from the date of production of a certified copy of this order.
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