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Sri Niwas Dubey v. State Of U.P. & Others - SPECIAL APPEAL No. - 1464 of 2007 [2007] RD-AH 18471 (29 November 2007)

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Special Appeal No. 1464 of 2007.

Sri Niwas Dubey


State of U.P. and others.


Hon'ble Anjani Kumar, J.

Hon'ble Pankaj Mithal, J.

Petitioner Sri Niwas Dubey, who is working as a teacher in "trained" graduate grade in the institution known as Azad Higher Secondary school, Punuwa Pokhar Bhinda, district Mahrajganj, which is recognised up to the high school standard, has challenged the order dated 9th October, 2007, whereby learned single Judge has dismissed the writ petition filed by the petitioner-appellant.

It appears that on retirement of one Gopal Lal Srivastava, Principal/Head Master of the institution, on the basis of the resolution of the committee of management dated 24th June, 2007 the name of the petitioner-appellant was recommended for appointment on ad-hoc basis as Principal/Head Master of the institution, as he was the senior most teacher. The contesting respondent no.5, namely Bachchu Singh, who was also working as teacher in the said institution, made an application before the District Inspector of Schools concerned submitting that petitioner-appellant is not the senior most teacher and does not possess the requisite qualification for appointment as ad-hoc Principal/Head Master under the provisions of the law. The District Inspector of Schools on the basis of the aforesaid representation filed by the respondent no.5, invited the petitioner-appellant to have his say in the matter by filing objection, if any and after giving opportunity to the committee of management passed the order dated 17th August, 2007, which is impugned in the writ petition filed by the petitioner, holding that since the petitioner is only B.A. and B.Ed. qualification though the petitioner is senior most teacher is not qualified for appointment as head of the institution i.e. Principal/Head Master.

Learned single Judge after considering the relevant materials on record and also going through the provisions of law have arrived at the conclusion that since the petitioner does not possess the requisite educational qualification for appointment/promotion as Head Master/ Principal even on ad-hoc basis in the institution, therefore the order of District Inspector of Schools does not warrant any interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.

We have heard learned counsel appearing on behalf of the parties. Before us the same arguments have been repeated by Sri M.D. Misra, learned counsel for the appellant. Learned counsel for the appellant submitted that in view of the provision of Section 18 of the U.P. Secondary Education Service Selection Board, 1982 (In short '1982 Act'), the senior most teacher is entitled to be promoted on ad-hoc basis as Head of the institution and the petitioner being the senior most teacher deserves to be promoted and the view taken to the contrary by the District Inspector of Schools concerned, which is affirmed by learned single Judge suffers from the error.

On the other hand, learned counsel for the respondents has relied upon a Division Bench decision of this Court in the case of Shamshul Zama Vs. District Inspector of School, Chandauli and others - 2001 (45) ALR 804, wherein the Division Bench of this Court has held that in view of the prohibition under the provision of Section 18 of '1982 Act', a person who does not possess the minimum educational qualification, cannot be appointed/promoted as Head of the institution. Sub-Section (4) of Section 18 of '1982 Act' puts prohibition, if read along with Sub-Section (3) of Section 16-E of U.P. Intermediate Education Act, 1921 (In short '1921 Act'), which reads as under, clearly provides that a person who does not possess and requisite qualification, cannot be appointed as Head of the institution.

"Section 16-E.

(3) No person shall be appointed as Head of Institution or teacher in an institution unless he possesses the minimum qualifications prescribed by the Regulations :

Provided that a person who does not possess such qualification may also be appointed if he has been granted exemption by the Board having regard to his education, experience and other attainments."

Regulation 1 of Chapter II of the '1921 Act' reads as under :

"1. The minimum qualifications for appointment as Head of Institution and Teachers in any recognized Institution whether by direct recruitment or otherwise, shall be as given in Appendix A".

Para 2 of Appendix A provides that in reference to prescribed qualifications the word "trained" means post-graduate training qualification such as L.T., B.T., B.Ed, S.C. or M.Ed. of any university or institution as specified in earlier para or any equivalent Degree or Diploma. The essential qualification for the post of Head of Institution in Appendix A are as under :

Essential Qualification

Head of the Institution

(1) Trained M.A. or M.Sc. or M.Com. or M.Sc. (Agrl.) or any equivalent post-graduate or any other degree which is awarded by corporate body specified in above mentioned para one and should have at least teaching experience of four years in classes 9 to 12 in any training institute or in any institution or University specified in above-mentioned para one or in any degree college affiliated to such University or institution, recognized by Board or any institution affiliated from Boards of other States or such other institutions whose examinations are recognized by the Board, or should be condition is also that he / she should not be below 30 years of age.

(2) First or second class post-graduate degree along with teaching experience of ten years in intermediate classes of any recognised institutions or third class post-graduate degree with teaching experience of fifteen years.

(3) Trained post-graduate diploma-holder in science. The condition is that he has passed this diploma course in first or second class and have efficiently worked for 15 or 20 years respectively after passing such diploma course."

In view of the aforesaid provision, the argument advanced on behalf of the appellant by Sri Misra, learned counsel for the appellant cannot be accepted. It is admitted case that the promotion in question is to the post of Head of the institution, therefore a person who possesses the requisite qualification for appointment to the post of Head of the institution alone can be promoted as Principal/Head Master.

Sri Misra, learned counsel for the appellant then contended that in view of provision of Section 32 of '1982 Act', since there is inconsistency, therefore provision of '1982 Act' will prevail.

We have given out considered thoughts to the provisions of Section 32 of '1982 Act' and we find that there is no inconsistency as submitted by learned counsel for the appellant. In this view of the matter, the argument advanced by Sri Misra cannot be accepted.

Since the arguments advanced on behalf of learned counsel for the appellant have no force, the special appeal is dismissed. However, there shall be no order as to costs.

Dated : 29.11.2007.



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