Court No. - 58
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 that regard.� 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
