Case :- WRIT - A No. - 11287 of 2018
Petitioner :- Deepak Sharma And 3 Others
Respondent :- State Of U.P. And 16 Others
Counsel for Petitioner :- Shantanu Khare,Sr. Advocate
Shri Ashok Khare
Counsel for Respondent :- C.S.C.,Ashok Kumar
Yadav,Awadhesh Kumar,Satish Chandra Yadav,Shyam
Krishna Gupta
Hon'ble Ashwani Kumar Mishra,J.
This petition has been filed seeking following reliefs:
"i) a writ, order or direction of a suitable nature commanding the
respondents to limit consideration of candidates for promotion as
Headmaster of Junior Basic School and Assistant Teacher / Headmaster
of Senior Basic School to candidates possessing TET (Primary level) /
TET (Upper primary level) alone in pursuance to promotional exercise
underway in pursuance to circular of Secretary, Board of Basic
Education, U.P., Allahabad dated 28.03.2018.
ii) a writ, order or direction of a suitable nature commanding the
respondents not to accord any consideration for promotion as
Headmaster - Junior Basic School and Assistant Teacher / Head Master,
Senior Basic School of candidates not possessing TET (Primary level) /
TET (Upper primary level)."
Learned senior counsel for the petitioners places reliance
upon clause 4 of the notification dated 12.11.2014 issued
by the National Council for Teacher Education (in short,
'NCTE'), which reads as under:
"4. Qualification for Recruitment:-
(a) The qualifications for recruitment of teachers in any recognized
school imparting Pre-primary, Primary, Upper Primary, Secondary,
Senior Secondary or Intermediate Schools or Colleges imparting senior
secondary education shall be as given in the First and Second
Schedule(s) annexed to these Regulations.
(b) For promotion of teachers the relevant minimum qualifications as
specified in the First and Second Schedule(s) are applicable for
consideration from one level to the next level."
Submission is that for the purposes of promotion to the
post of Headmaster / Headmistress as well as to the post of
Assistant Teacher, the requirement of obtaining certificates
of TET (Primary level) / TET (Upper primary level) would be
mandatory. It is contended that the respondents cannot
enlarge the zone of consideration while considering the
claim of promotion, even to those who do not possess the
aforesaid qualification.
While entertaining this petition, the petitioners were
permitted to implead NCTE as a party - respondent and its
counsel was allowed time to obtain instructions in thatregard. Following orders were passed in the matter on
08.05.2018:
"Petitioners contend that by virtue of regulation 4(b) of the NCTE
Notification dated 12.11.2014, the qualification for promotion is also
prescribed. Contention is that the qualification prescribed in the first
and second schedule to the notification would equally apply for direct
recruitment and promotion. It is also stated that section 23 of the Act
of 2009 talks of appointment which includes promotion also.
Sri Dhananjay Awasthi, learned counsel appearing for the NCTE seeks
short indulgence in order to obtain specific instruction from NCTE in
that regard.
Put up as fresh on 15.5.2018."
Shri Dhananjay Awasthi, learned counsel representing
respondent - NCTE, on the basis of the instructions, states
that the requirement contained in clause 4(b) of the NCTE
notification dated 12.11.2014 would have to be met by a
candidate before he is considered for promotion to the post
of Headmaster / Headmistress of junior basic school and
Assistant Teacher / Headmaster of senior basic school.
Shri A.K. Yadav, learned counsel representing the
respondent no. 3 as well as District Basic Education Officer,
initially, tried to raise an objection with regard to
maintainability of the writ petition at the instance of the
present petitioners on the ground that they do not possess
requisite eligibility for promotion to the posts in question
and therefore, the writ petition, at their instance, be not
entertained.
However, in view of the averments made in paragraph no.
10 of the writ petition as well as in view of proviso to rule
8(3), the objection of the respondents is not liable to be
sustained; in as much as, in the absence of availability of
requisite number of teachers with TET qualification, the
respondents have the jurisdiction to relax the qualification
prescribed under the relevant Rules. Even otherwise, the
petitioner no. 1 is shown to have completed three years
working as Assistant Teacher. So far as the petitioners'
claim, on merit, is concerned, the respondents have not
been able to dispute it, effectively. No provision of law has
been shown disputing the averments made on behalf of the
petitioners.
In such view of the matter, this writ petition stands
disposed of with a direction upon the respondents to act
strictly in accordance with the clause 4(b) of the NCTE
notification dated 12.11.2014 and to restrict the zone of
consideration for promotion to Teachers / Headmaster /
Headmistress who possess requisite TET qualification in
terms of the clause 4 of the NCTE notification dated
12.11.2014. It would further be appropriate to observe
that in view of the Full Bench judgment of this Court in
Shiv Kumar Sharma and Others Vs. State of U.P. and Others (2013 (6) ADJ 310), it is the qualification, contained
in the NCTE notification, which would be relevant and
would have to be scrupulously followed and the
respondents cannot bank upon the provisions of the Uttar
Pradesh Basic Education (Teachers) Service Rules, 1981
alone to consider the claim of promotion.
Order Date :- 15.5.2018
Amit Mishra
Petitioner :- Deepak Sharma And 3 Others
Respondent :- State Of U.P. And 16 Others
Counsel for Petitioner :- Shantanu Khare,Sr. Advocate
Shri Ashok Khare
Counsel for Respondent :- C.S.C.,Ashok Kumar
Yadav,Awadhesh Kumar,Satish Chandra Yadav,Shyam
Krishna Gupta
Hon'ble Ashwani Kumar Mishra,J.
This petition has been filed seeking following reliefs:
"i) a writ, order or direction of a suitable nature commanding the
respondents to limit consideration of candidates for promotion as
Headmaster of Junior Basic School and Assistant Teacher / Headmaster
of Senior Basic School to candidates possessing TET (Primary level) /
TET (Upper primary level) alone in pursuance to promotional exercise
underway in pursuance to circular of Secretary, Board of Basic
Education, U.P., Allahabad dated 28.03.2018.
ii) a writ, order or direction of a suitable nature commanding the
respondents not to accord any consideration for promotion as
Headmaster - Junior Basic School and Assistant Teacher / Head Master,
Senior Basic School of candidates not possessing TET (Primary level) /
TET (Upper primary level)."
Learned senior counsel for the petitioners places reliance
upon clause 4 of the notification dated 12.11.2014 issued
by the National Council for Teacher Education (in short,
'NCTE'), which reads as under:
"4. Qualification for Recruitment:-
(a) The qualifications for recruitment of teachers in any recognized
school imparting Pre-primary, Primary, Upper Primary, Secondary,
Senior Secondary or Intermediate Schools or Colleges imparting senior
secondary education shall be as given in the First and Second
Schedule(s) annexed to these Regulations.
(b) For promotion of teachers the relevant minimum qualifications as
specified in the First and Second Schedule(s) are applicable for
consideration from one level to the next level."
Submission is that for the purposes of promotion to the
post of Headmaster / Headmistress as well as to the post of
Assistant Teacher, the requirement of obtaining certificates
of TET (Primary level) / TET (Upper primary level) would be
mandatory. It is contended that the respondents cannot
enlarge the zone of consideration while considering the
claim of promotion, even to those who do not possess the
aforesaid qualification.
While entertaining this petition, the petitioners were
permitted to implead NCTE as a party - respondent and its
counsel was allowed time to obtain instructions in thatregard. Following orders were passed in the matter on
08.05.2018:
"Petitioners contend that by virtue of regulation 4(b) of the NCTE
Notification dated 12.11.2014, the qualification for promotion is also
prescribed. Contention is that the qualification prescribed in the first
and second schedule to the notification would equally apply for direct
recruitment and promotion. It is also stated that section 23 of the Act
of 2009 talks of appointment which includes promotion also.
Sri Dhananjay Awasthi, learned counsel appearing for the NCTE seeks
short indulgence in order to obtain specific instruction from NCTE in
that regard.
Put up as fresh on 15.5.2018."
Shri Dhananjay Awasthi, learned counsel representing
respondent - NCTE, on the basis of the instructions, states
that the requirement contained in clause 4(b) of the NCTE
notification dated 12.11.2014 would have to be met by a
candidate before he is considered for promotion to the post
of Headmaster / Headmistress of junior basic school and
Assistant Teacher / Headmaster of senior basic school.
Shri A.K. Yadav, learned counsel representing the
respondent no. 3 as well as District Basic Education Officer,
initially, tried to raise an objection with regard to
maintainability of the writ petition at the instance of the
present petitioners on the ground that they do not possess
requisite eligibility for promotion to the posts in question
and therefore, the writ petition, at their instance, be not
entertained.
However, in view of the averments made in paragraph no.
10 of the writ petition as well as in view of proviso to rule
8(3), the objection of the respondents is not liable to be
sustained; in as much as, in the absence of availability of
requisite number of teachers with TET qualification, the
respondents have the jurisdiction to relax the qualification
prescribed under the relevant Rules. Even otherwise, the
petitioner no. 1 is shown to have completed three years
working as Assistant Teacher. So far as the petitioners'
claim, on merit, is concerned, the respondents have not
been able to dispute it, effectively. No provision of law has
been shown disputing the averments made on behalf of the
petitioners.
In such view of the matter, this writ petition stands
disposed of with a direction upon the respondents to act
strictly in accordance with the clause 4(b) of the NCTE
notification dated 12.11.2014 and to restrict the zone of
consideration for promotion to Teachers / Headmaster /
Headmistress who possess requisite TET qualification in
terms of the clause 4 of the NCTE notification dated
12.11.2014. It would further be appropriate to observe
that in view of the Full Bench judgment of this Court in
Shiv Kumar Sharma and Others Vs. State of U.P. and Others (2013 (6) ADJ 310), it is the qualification, contained
in the NCTE notification, which would be relevant and
would have to be scrupulously followed and the
respondents cannot bank upon the provisions of the Uttar
Pradesh Basic Education (Teachers) Service Rules, 1981
alone to consider the claim of promotion.
Order Date :- 15.5.2018
Amit Mishra
