1. Petitioner before this Court seeks quashing of the order of the Director, Secondary Education dated 19 th June, 2009 as also a writ of mandamus directing the respondents to provide salary to the petitioner as Assistant Teacher of primary section attached to Mangal Rai Girls Higher Secondary School, Patla, Ghaziabad from the date of appointment i. e. 30.10.2000 and to continue to make the payment of salary as such regularly.
2. Facts, in short, giving rise to the present writ petition are as follows:
3. Mangal Rai Girls Higher Secondary School, Patla, Ghaziabad is a recognized and aided girls high school. It is admitted that the provisions of the Intermediate Education Act and the regulations framed thereunder are fully applicable to the primary section, which is part and parcel of the same high school institution. One Smt. Krishna Rehlan is stated to have retired from the post of Assistant Teacher primary section. For filling up the said vacancy the manager of the institution obtained a permission from the Finance and Account Officer in the office of the District Inspector of Schools and thereafter proceeded to advertise the vacancy in Hindi newspaper 'Amar Ujala' on 03.10.2000. The vacancy was earmarked for O.B.C. category candidate only. The petitioner along with two other candidates applied and is said to have been selected by the section committee constituted for the purpose in its meeting held on 15.10.2000. The Manager of the institution decided to offer appointment to the petitioner and forwarded the relevant papers for the approval of the District Inspector of Schools, who under the order dated 05.02.2001 refused to accord financial approval to the appointment so made on the ground that the appointment was in excess of the total sanctioned post available in the primary section.
4. Not being satisfied the petitioner filed Writ Petition No. 15703 of 2001. The writ petition was disposed of by providing that since the power to create post under U.P. Act No. 24 of 1971 is available with the Director and in the facts of the case creation of the post is required, matter be examined by the Director of Education. With the aforesaid direction the writ petition was disposed of permitting the petitioner to represent his grievance by way of representation.
5. The Director of Education under the impugned order has come to a conclusion that since in 1979 five teachers were appointed with the approval of the District Inspector of Schools and further since in every primary section one teacher is admissible, at least 5 teachers could be appointed in the institution. He has, thereafter, proceeded to hold that the vacancy has rightly been reserved for O.B.C. Category candidate, as the quota in that regard was unfilled. However, he has refused to sanction payment of salary to the petitioner on the ground that for appointment in the primary section under the relevant provisions, the candidate must be possessed of teaching qualificationlike J.T.C., B.T.C. H.T.C. Etc. Since the petitioner had the degree of B. Ed. and M. Ed. in his faovur, he has been held to be ineligible for being appointed as Assistant Teacher in the primary section. It is against this order that the present writ petition has been filed.
6. From Appendix-A to Chapter-II of the Regulations framed under the Intermediate Education Act it is apparently clear that, for the teacher to be appointed in primary institution, the academic qualification prescribed is High School with J.T.C., B.T.C., H.T.C., which has now been changed to graduation with H.T.C., J.T.C. and B.T.C. However, such change is of not much importance in the facts of the present case, inasmuch as teaching qualification remains unchanged, namely J.T.C., B.T.C., H.T.C. or equivalent thereto.
7. Admittedly, the petitioner is not possessed of any of the aforesaid educational qualification or equivalent thereto.
8. The issue with regard to the degree of B. Ed. being equivalent or higher to J.T.C., B.T.C., H.T.C. has been subject matter of consideration before the Hon'ble Supreme Court in the case of Mohd. Sartaj and others vs. State of U.P. and others, reported in 2006(2) SCC 315 and it has been specifically held that the degree of B. Ed. is not equivalent to J.T.C., B.T.C., H.T.C. etc. and a candidate with a degree of B. Ed. is not eligible for appointment against a post qua which teaching qualification is provided as J.T.C., B.T.C. etc.
9. The Director, therefore, appears to be justified in recording a finding that the petitioner is not possessed of the prescribed minimum qualifications as provided for under the Intermediate Education Act and, therefore, there can be no payment of salary in his favour through State exchequer.
10. This Court may refer to the case of Pramod Kumar vs. U.P. Secondary Education Services Commission and others; 2008(4) ALJ 207, wherein the Hon'ble Supreme Court has held that the essential qualifications are to be judged at the time of appointment and if the candidate is not possessed of the qualification so prescribed, the appointment would be void. It has further been held that any amount of working in absence of essential qualification will not cure the initial defect and such irregularities cannot be condoned nor can be regularized.
11. In view of the aforesaid, this Court finds no error in the order of Director of Education which may warrant any interference under Article 226 of the Constitution of India.
12. This Court may also clarify that against the substantive vacancy in the primary section of an Intermediate College, the procedure prescribed under Section 16-E, constitution of selection committee in accordance with Section 16-F is but necessary. In the facts of the case the petitioner has hopelessly failed to establish the compliance of the aforesaid statutory provisions also. For the reasons recorded above, no relief can be granted.
13. Writ petition is dismissed.