Court No. - 6
Case :- WRIT - A No. - 8196 of 2021 Petitioner :- Ompal Singh Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Shachindra Kumar Mishra Counsel for Respondent :- C.S.C.,Jitendra Rana
Hon'ble Pankaj Bhatia,J.
Heard counsel for the petitioner, Sri Gautam, Advocate appearing on behalf of the Respondent No. 6, learned Standing Counsel and perused the record.
The brief controversy in the present writ petition is that the petitioner claims to be Senior Teacher in terms of seniority as determined by the Committee of Management wherein the petitioner is placed at Serial No. 2 and Respondent No. 6 is placed at Serial No. 4. The contention of petitioner is that Dr. Shiv Kumar Sharma, who is placed at Serial No. 1 in the seniority and the principal has retired on the said post of Head Master as a result whereof said post fell vacant and the petitioner claims that he was entitled to be considered for appointment as an Officiating Head Master in place of Dr. Shiv Kumar Sharma whereas the Respondent No. 6 has been appointed as Officiating Head Principal by means of an order dated 31.5.2021, which is on record as Annexure No. 8.
A perusal of the said order shows that the consent of the other persons, who were eligible was taken into account, however, while dealing with the eligibility of the petitioner herein, his candidature was not considered on the ground that the petitioner is a TGT-Physical Education Teacher and thus, was not eligible to be appointed as Officiating Head Master. The said order considered cases of all the persons eligible and after holding that the petitioner did not have the requisite qualification, proceeded to appoint the Respondent No. 6 as Officiating Head Master as other candidates had given in writing that they are not interested on account of their family problems. The said order is under challenge mainly on the ground that it is well settled that even TGT-Physical Education Teacher can be considered and there is no bar in consideration on that count. Reliance in this regard has been placed on the Full Bench judgment of this Court in Special Appeal No. 1247 of 2013, Amal Kishore Singh Vs. State of UP Thru' Secretary & 4 others wherein vide judgment dated 10.10.2018, the question was answered in the following manner:
"47. We, thus, answer question (i) in affirmative and question (iii) by holding that Vindhyachal Yadav does not lay down the correct law. However, question (ii) has to be answered, subject to certain riders. A B.P.Ed. degree being a post graduate training qualification, would entitle a person to hold post of Headmaster of a recognised High School but not that of Principal of an Intermediate college. The reason is that under Regulations, 2001 as well as under Minimum Qualification Regulations, 2014 framed by NCTE, B.P.Ed. is recognised as eligibility qualification for teaching Classes IX - X (Secondary/ High School) but not for Classes XI - XII (Senior Secondary/Intermediate). For teaching Intermediate classes, the person should possess M.P.Ed. degree of at least two years duration from any National Council for Teacher Education recognised institution. These regulations do not prescribe any separate qualification for Head of institution and thus the qualification prescribed for a teacher of Intermediate classes (Senior-Secondary) would also apply to Head of such an institution. We have already held above that the qualifications prescribed by NCTE would be binding on the State, therefore, the qualifications prescribed by Minimum Qualification Regulations, 2014 have to be read alongwith Appendix-A and thus, a teacher possessing B.P.Ed. degree, would not be eligible to hold post of Principal of an Intermediate College.
48. We, thus, reply to question (ii) by holding that a teacher in physical education having B.P.Ed. degree is eligible to be appointed as Headmaster of a High School, but not as Principal of an Intermediate college."
Considering the fact that the candidature of the petitioner has been rejected holding that the petitioner is a TGT-Physical Education Teacher cannot be sustained in view of the Full Bench judgment of this Court. Accordingly, the order dated 31.5.2021 passed by the Respondent No. 5 is set aside and the matter is remanded before the DIOS, Gautam Budha Nagar, Respondent No. 5 to pass fresh orders after giving an opportunity of hearing to the petitioner as well as Respondent No. 6 and after taking into consideration the Full Bench Judgment of this Court in the case of Amal Kishore Singh (supra).
The said exercise shall be carried out by the Respondent No. 5 as expeditiously as possible preferably within a period of three weeks from the date of filing of a copy of this order before the Respondent No. 5. While passing the order, DIOS, Respondent No. 5 shall also consider the argument of the petitioner that the institution in question has been recognized upto to High School and the permission to run the intermediate class cannot be termed as recognition of an intermediate college.
Counsel for the petitioner lastly places reliance on the letter dated 14.1.1993 while granting affiliation for running the unaided intermediate classes.
The DIOS, Respondent No. 5 shall also take into consideration the subsequent recognition, if any, granted to the institution as an intermediate education.
The writ petition is disposed off.
Copy of the order downloaded from the official website of this Court shall be treated as certified copy of the order.
Order Date :- 29.7.2021 vinay