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STATE OF U.P.& OTHERS versus SMT. ROSALIA MINJ & ANOTHER

High Court of Judicature at Allahabad

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State Of U.P.& Others v. Smt. Rosalia Minj & Another - SPECIAL APPEAL DEFECTIVE No. 664 of 2002 [2003] RD-AH 68 (31 March 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

[Reserved]

Special Appeal No. 664 of 2002.

State of U.P. and others Vs. Smt. Rosalia Minj Sohanta and another.

____________

Hon. Tarun Chatterjee, C.J.

Hon. R.K. Agrawal, J.

[Delivered by R.K. Agrawal, J.]

The present Special appeal has been filed against the judgment-dated 16.2.2000 passed by the learned Judge in Civil Misc. Writ Petition No. 1303 of 1993 whereby the learned Judge, had disposed of the writ petition  quashing the order dated 8.10.1992 contained in annexure 8 to the writ petition and directing the authorities to treat the petitioner as trained teacher in terms of the Government Order dated 21.10.1994 and pay the salary as trained teacher in the revised scale alongwith arrears.

Briefly stated the facts giving rise to the present Special Appeal are that the respondent no.1 (writ petitioner) was appointed on 17.7.1973 as Assistant Teacher in Primary School namely Bal Vidyalaya Nayapura, Stanely Road, Allahabad (hereinafter referred to as the School). She was given trained grade as she was having certificate of diploma in Education from the Pune University. Sometimes in February 1992, the authorities found that the diploma possessed by the respondent no.1 was not recognised as equivalent to B.T.C. and  since B.T.C. was the only training after obtaining of which a person becomes eligible for appointment as Assistant Teacher in primary School, therefore, vide order dated 8.10.1992 she was designated as untrained Teacher and ordered to draw as untrained teacher. The respondent no.1 challenged the said order by filing a Writ Petition   in this Court under Article 226 of the Constitution of India which had been finally disposed off by the learned Judge vide order dated 16.2.2000 which is impugned in this Special Appeal.

We have heard Shri Ran Vijay Singh learned standing counsel and Shri R.K. Ojha learned counsel for the respondent no.1.

The learned standing counsel submitted that on the date when the respondent no.1 was appointed as trained Teacher in primary school on 17.7.1973, she did not possess the requisite training i.e. B.T.C. and, therefore, she was not eligible and could not have been appointed as a trained Teacher. According to him, the certificate of Diploma in Education from Pune University is not recognised as equivalent to B.T.C. Training by the Government of Uttar Pradesh, and thus, no benefit can be derived from the said certificate. He further submitted that the respondent no.1 has rightly been granted salary treating her to be as untrained Teacher and the learned Judge was not justified in directing payment of salary as trained Teacher to the respondent no.1. He relied upon the decision of Hon. Supreme Court in the case of Union of India and others Vs. Ravi Shanker and others, 1998(3) SCC 146 and decision of a Division Bench of this Court in the case of State of U.P. and others Vs. Param Hansh Singh, (2001) 2 UPLBEC 1685.

According to him, the government Order 21.10.1994 did not have any retrospective effect and all those untrained teachers who have completed 10 years' service or were going to attain the age of superannuation within 2 years, were to be treated as trained teachers after a committee constituted under the aforesaid Government Order  examined their cases. Thus, the Single Judge was not justified in directing the respondent no.1 to be treated as trained Teacher bye-passing the Government Order dated 21.10.1994. He further submitted that the learned Judge had granted the relief, which was not even claimed by the respondent no.1. He relied upon the decision of Hon. Supreme Court in the case of Chandigarh Administration Vs. Laxman Roller Flour Mills Pvt. Ltd. (1998) 8 S.C.C. 326.

Shri R.K. Ojha learned counsel for the respondent no.1, however, submitted that the respondent no.1 was appointed as Assistant Teacher in the School on 17.7.1973. She possessed the certificate of Diploma in Education from Pune University, which is a recognised University by the University Grant Commission and, therefore, its Diploma is recognised all over India. He further submitted that as far back in the year 1986, a doubt was expressed on the question as to whether the diploma granted by the Pune University is recognised or not and the Director of Education, U.P. Allahabad, vide letter dated 21.8.1989 had informed the Principal of the  School relying upon the Government Order dated 29.8.1966 that any degree or diploma given by the University in India which is a recognised University by the University Grant Commission, is recognised for appointment in the State. Thus, he submitted that the respondent no.1 had rightly been appointed as a trained teacher in the School and, therefore, treating   her as untrained teacher was wholly illegal. In any event, he submitted that in view of the Government Order dated 21.10.1994 which provided for  treating those untrained Assistant Teachers who had been working for more than 10 years to be trained teachers, the judgment and order dated 16.2.2000 calls for no interference. He relied upon the decision in the case of Smt. Santosh Yadav Vs. State of Haryana  reported in 1997(1) UPLBEC 259.

Having heard the learned counsel for the parties, we find that it is not in dispute that the respondent no.1  possesses  certificate of Diploma in Education given by the Pune University. She was appointed as Assistant Teacher in trained grade in  School  on 17.7.1973 and had been paid salary as trained teacher since then. In the year 1986 on some doubt being expressed regarding her training i.e. certificate of Diploma in Education awarded by the Pune University, the Director of Education had clarified the matter that all the degrees and diplomas awarded by the Universities recognised by the University Grant Commission, is recognised for the purposes of service in the State of U.P. Thereafter, the matter rested there. However, in month of February 1992, when the salary in the revised pay scale was to be fixed and certificates were  examined, the question about training again cropped up  and authorities held that the Diploma in Education held by the respondent no.1 is not equivalent to B.T.C. training. In this background of the matter, the question is as to whether the respondent no.1 was entitled to be treated as trained Teacher or not?.

To regulate the basic education in the State of U.P., the U.P. Basic Education Act 1972( hereinafter referred to as the Act) has been enacted under Section 19(1) of the Act, the Governor of U.P. framed Rules known as U.P. Recognised Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules 1975(hereinafter referred to as the 1975 Rules) . Rule 3 of the 1975 Rules provided that the every recognised school shall be bound by the conditions and restrictions hereinafter specified. Rule 9 relates to appointment of teachers which provides that no person shall be appointed as teacher or employee in any recognised school unless he possesses such qualifications as are specified in this behalf by the Board and for whose appointment the previous approval of the Basic Shiksha Adhikari has been obtained in writing. These Rules came into force on 1.7.1975. In exercise of powers under Rule 9 of the 1975 Rules, the Board prescribed the necessary qualifications for appointment on the post of Assistant Teachers in recognised Primary Schools. When the respondent no.1 was appointed i.e.on 17.7.1973, the 1975 Rules was not in force. Thus, the qualifications prescribed by the Board for appointment on the post of Assistant Teachers in a recognised school was not in force at the time when the respondent no.1 was appointed. The learned standing counsel has not placed any material on record before us, to show as to what was the qualification prescribed for appointment on the post of Assistant Teacher in recognised schools in the year 1973 when the respondent no.1 was appointed. Thus, it can be presumed that the Diploma in Education given by the recognised University was treated as equivalent training for appointment on the post of Assistant Teacher in the recognised Basic School. In this view of the matter when the respondent no.1 was appointed as Assistant Teacher on 17.7.1973 and had been paid salary as trained teacher right uptill 1992 i.e. for 19 years, the presumption is that she was duly qualified  and had rightly been appointed on the post of Assistant Teacher  in trained grade. Moreover, we find that the State Government has vide Government Order dated 21.10.1994 provided the benefit of trained grade to those untrained teachers, who have also completed more than 10 years of service. In any event, the respondent no.1 was entitled for being treated as a trained teacher and payment of salary as trained teacher.

In the case of Union of India and another Vs. Ravi Shanker and another (supra), the Apex Court has held that the degree of Vaidya Visharad awarded by Hindi Sahitya Sammelan, cannot be held to be a recognised qualification under the Recruitment Rules. The said decision is of no assistance to the appellants in as much as in the present case, there is no material on record to show as to what was the prescribed qualification for the appointment of Assistant Teacher in Primary School in the year 1973. The respondent no.1 had been appointed on the said post in the year 1973 and she continued to work till 1992 as trained teacher and the salary in that grade had also been paid, thus, it cannot be said that she did not possess the requisite qualifications.

In the case of State of U.P. and others Vs. Param Hansh Singh (supra) this Court has held that the Rule has fixed the minimum height and the measurement of chest (expended and unexpended) and there is no scope for any kind of variation in the same. If a candidate is unable to meet the prescribed standard even by a slight margin, he has to be held as unqualified.

In the present case we find that the prescribed qualification for appointment on the post of Assistant Teacher for the first time came into force on 1.7.1975 whereas appointment  had been made on 17.7.1973. In the absence of any prescribed qualification, there was no illegality in the appointment of the respondent no.1.

So far as the contention that the relief which was not prayed for, was allowed by the learned Judge is concerned, we find that the appointment of the respondent no.1 was perfectly valid and justified and, thus, this question does not arise.

In view of foregoing discussions, we do not find any merit in this Special Appeal. The Special Appeal is dismissed.

However, the parties shall bear their own costs.

DT: 31.3.2003

Iss/-  


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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