{"id":199448,"date":"2010-07-09T00:00:00","date_gmt":"2010-07-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jintendra-kumar-soni-and-others-vs-state-of-u-p-and-others-on-9-july-2010"},"modified":"2015-10-27T23:41:18","modified_gmt":"2015-10-27T18:11:18","slug":"jintendra-kumar-soni-and-others-vs-state-of-u-p-and-others-on-9-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jintendra-kumar-soni-and-others-vs-state-of-u-p-and-others-on-9-july-2010","title":{"rendered":"Jintendra Kumar Soni And Others vs State Of U.P. And Others on 9 July, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Jintendra Kumar Soni And Others vs State Of U.P. And Others on 9 July, 2010<\/div>\n
                                                      Order Reserved on 21\/5\/2010.\n                                                             Delivered on 09\/7\/2010\n\n\n                Civil Misc. Writ Petition No.3733 of 2009.\n\nJitendra Kumar Soni & Ors                                          ...........Petitioners\n\n                                       Versus\n\nState of U.P. & Anr                                      ...........Respondents.\n\n                                 With\n                    Civil Misc. Writ Petition No.2614 of 2009.\nKamal Kumar                                     .................Petitioner\n                                 Vs.\nState of U.P. & Ors.                            ...........Respondents.\n\n                                  With\n       Civil Misc. Writ Petition No.64587 of 2008.\nDinesh Yadav                                             .................Petitioner\n                                 Vs.\nState of U.P. & Anr.                            ...........Respondents.\n\n\n\n                                  With\n       Civil Misc. Writ Petition No.6782 of 2009.\nSmt. Karuna                                           .................Petitioner\n                                 Vs.\nState of U.P. & Ors.                                   ...........Respondents.\n\n                                  With\n       Civil Misc. Writ Petition No.56505 of 2009.\nPramod Kumar Sharma                                      .................Petitioner\n                                 Vs.\nState of U.P. & Ors.                                      ...........Respondents.\n\n                                  With\n       Civil Misc. Writ Petition No.64394 of 2009.\nKamlesh Kumar & Anr                                      .................Petitioners\n                                 Vs.\nState of U.P. & Ors.                            ...........Respondents.\n\n                                  With\n       Civil Misc. Writ Petition No.64528 of 2009.\nLalit Kumar & Anr                                        .................Petitioners\n                                            2\n\n                                  Vs.\nState of U.P. & Ors.                           ...........Respondents.\n\n\n                                    With\n       Civil Misc. Writ Petition No.64641 of 2009.\nRaj Bahadur Singh                                      .................Petitioner\n                                  Vs.\nState of U.P. & Ors.                                  ...........Respondents.\n\n\n                                    With\n       Civil Misc. Writ Petition No.66679 of 2009.\nSatendra Kumar                                         .................Petitioner\n                                  Vs.\nState of U.P. & Ors.                                   ...........Respondents.\n\n\n                                    With\n       Civil Misc. Writ Petition No.57325 of 2009.\nAjay Kumar Tripathi                                    .................Petitioner\n                                  Vs.\nState of U.P. & Ors.                                    ...........Respondents.\n\n\n                                    With\n       Civil Misc. Writ Petition No.56860 of 2009.\nKrishna Pratap Singh Chandel                             .................Petitioner\n                                  Vs.\nState of U.P. & Anr.                                      ...........Respondents.\n\n\n                                    With\n       Civil Misc. Writ Petition No.49959 of 2009.\nPrasiddh Narayan Singh                                 .................Petitioner\n                                  Vs.\nPrincipal District Institution of Education\nand Training Maharajganj & Ors.                         ...........Respondents.\n\n\n                                    With\n       Civil Misc. Writ Petition No.49216 of 2009.\nAlka Singh                                                  .................Petitioner\n                                  Vs.\nState of U.P. & Ors.                                   ...........Respondents.\n                                        3\n\n\n\n\n                                   :::::::::::\n\nHon'ble Ashok Bhushan, J.\n<\/pre>\n
Hon’ble Arun Tandon, J.\n<\/p>\n
      (Delivered by Hon’ble Ashok Bhushan, J)
\n      These writ petitions have been placed before this Division Bench
\nby order of Hon’ble The Chief Justice dated 06\/11\/2009, on a reference
\nmade by learned Single Judge referring following two questions to be
\nexamined by a larger Bench.\n<\/p>\n
      “(a) Whether the degree obtained by an student from
\n      an institution\/university established by law, situate at
\n      a place outside the State of Uttar Pradesh but duly
\n      recognized by the N.C.T.E. can be refused
\n      acceptance as valid qualification for being admitted
\n      to B.T.C. Course-2008 by the State.\n<\/p><\/blockquote>\n
      (b)     Whether the classification under the Government
\n      Order between the degree of B.Ed. obtained from other
\n      State being valid for admission to B.T.C. Course-2008,
\n      while the degree of C.P.Ed, B.P.Ed, and D.P.Ed similarly
\n      obtained from the institutions situate outside the State of
\n      Uttar Pradesh being invalid for considered for admission
\n      to B.T.C. Course-2008 is arbitrary and without any
\n      reasonable rational and therefore hit by Article 14 of the
\n      Constitution of India.”<\/p><\/blockquote>\n
      We have heard Shri Ashok Khare, learned Senior Counsel
\nassisted by Shri Vishnu Shanker Gupta for the petitioners and other
\nlearned counsels appearing in the connected writ petitions and Shri V.K.
\nSingh, learned Additional Advocate General for the State respondents.\n<\/p>\n
      Brief facts necessary for appreciating the issues are: The State of
\nU.P. vide Government Order dated 10\/7\/2007 decided to impart Special
\nB.T.C. Training-2007 to 60,000 candidates in accordance with the terms
\nand conditions as mentioned in the Government Order dated 10\/7\/2007.
\nThe said Government Order was partially modified by Government
\nOrder dated 13\/7\/2007. Under the aforesaid Government Order,
\ncandidates who have passed B.Ed alone were eligible for consideration.
\nAn order dated 31\/7\/2007, was passed by the learned Single Judge
\n(Hon’ble Ashok Bhushan,J) in Writ Petition No.33428 of 2007, Arvind
\nKumar & Anr. Vs. State of U.P. & Ors, directing for permitting the
\n                                                4<\/span><\/p>\n
candidates who have passed Diploma in Physical Education, Bachelors
\nDegree in Physical Education and L.T. Training and a consequential
\norder was issued by State of U.P. in this regard. Various admissions
\nwere made in pursuance of the Special BTC Training-2007. For certain
\nremaining     vacancies          a        Special     BTC     Training-2008          (Special
\nRecruitment) was initiated by Government Order dated 14\/11\/2008.
\nPrincipal, of District Institute of Education and Training issued
\nadvertisement inviting applications for Special BTC Course-2008.
\nEducational    qualification         is prescribed          in paragraph         1 of the
\nadvertisement dated 23\/11\/2008, which required apart from Bachelors
\nDegree granted by a duly established University and recognised by
\nUniversity Grants Commission and B.Ed from institution duly recognised
\nby the National Council of Teachers Education hereinafter referred to as
\n(“NCTE”) or regular candidates who have obtained degrees of L.T.,
\nB.P.Ed, C.P.Ed and D.P.Ed from institutions within the State of U.P.
\nThe relevant extract of qualifications is as follows:\n<\/p>\n
              ‘kSf{kd ;ksX;rk%<\/p>\n
              \u00bc1\u00bd      Hkkjr esa fof\/k }kjk LFkkfir rFkk fo’ofo|ky; vuqnku vk;ksx ls
\n              ekU;rk izkIr fo’ofo|ky;ksa ls Lukrd ijh{kk mRrh.kZ<\/p>\n
                                                     ,oa<\/p>\n
              \u00bc2\u00bd       jk”Vz~h; v\/;kid f’k{kk ifj”kn ls ekU;rk izkIr laLFkkxr ch],M]
\n              izf’k{k.k mRrh.kZ vH;FkhZ
\n                                                    vFkok<\/p>\n
              izn’s k esa lapkfyr egkfo|ky;ksa] fo’ofo|ky;ksa] izf’k{k.k egkfo|ky;ksa ls
\n              jk”Vz~h;       v\/;kid     f’k{kk     ifj”kn      ls       ekU;rk    izkIr
\n              ,y]Vh]@ch]ih],M]@Mh]ih]Mh]@lh]ih]Mh] laLFkkxr izf’k{k.k mRrh.kZ
\n              vH;FkhZA<\/p>\n
       The petitioners No. 1 to 8 in Writ Petition No.3733 of 2009 have
\npassed their Bachelor of Physical Education Degree from Shri Krishna
\nCollege of Education run by Jamuna Prasad Nayak B.Ed Shiksha
\nPrasar Samiti, Chhattarpur, M.P. Petitioner No. 9 has passed his
\nBachelor of Physical Education from Mansa College, Kohka Road,
\nKurund, (Bhilai), affiliated to Pt. Ravi Shanker Shukla University, Raipur.\n<\/p><\/blockquote>\n
Petitioner no. 10 has passed his Physical Education Degree from Raja
\nRao Bahadur Singh Physical Education Degree College, Basari,
\nChattarpur, M.P. a College affiliated to Dr. Hari Singh Gour
\nVishwavidyalaya, Sagar. The Colleges from where the B.P.Ed degrees
\n                                       5<\/span><\/p>\n
are obtained are approved institution of NCTE.\n<\/p>\n
       In view of the conditions as       quoted above, the petitioners stand
\nexcluded for consideration for Special BTC Training Course, 2008. The
\npetitioners have prayed for quashing the aforesaid condition and mandamus
\ncommanding the respondents to consider the candidatures of the petitioners.\n<\/p>\n
       The reliefs claimed in the Writ Petition No. 3733\/2009 are as
\nfollows:\n<\/p>\n
       “(1). a writ, order or direction in the nature of
\n       certiorari quashing the condition of having obtained
\n       Bachelor of Physical Education Degree from an
\n       institution within the State of Uttar Pradesh for
\n       admission to Special B.T.C. Training Course 2008
\n       (Special Recruitment).\n<\/p><\/blockquote>\n
       (2)     a writ, order or direction of suitable nature
\n       commanding the respondents to consider the
\n       candidatures of the petitioners for admission to
\n       Special B.T.C. Training Course 2008 (Special
\n       Recruitment) treating the Bachelor of Physical
\n       Education Degree obtained by the petitioners as
\n       sufficient for treating the petitioners as eligible for
\n       consideration.”<\/p><\/blockquote>\n
       Shri Ashok Khare, learned Senior Advocate appearing for the
\npetitioners in support of the writ petition contended that the condition
\nspecially Clause 2 sub-clause 3 of the Government Order                 dated
\n14\/11\/2008, confining the eligibility only to the candidates who have
\npassed B.P.Ed, C.P.Ed and D.P.Ed from the institution of U.P. is
\nunsustainable since the degrees obtained by the petitioners are also
\ndegrees from the recognised NCTE institutions and cannot be
\ndiscriminated with the degrees obtained by the candidates from the
\ninstitution within the State of U.P. It is submitted by the learned counsel
\nfor the petitioners that the candidates having B.Ed degrees from any
\nplace including from the institution outside the State of U.P. are fully
\neligible for consideration for admission in Special BTC Course-2008,
\nwhereas the candidates who have obtained B.P.Ed, C.P.Ed and D.P.Ed
\nfrom the institution outside the State of U.P. have been disqualified
\nwhich is clearly arbitrary and discriminatory.\n<\/p>\n
       Learned    counsel    for   the     petitioners   submitted   that   no
\n                                       6<\/span><\/p>\n
discrimination can be made in the degrees granted by the institution
\nduly recognised by the NCTE.\n<\/p>\n
       Learned counsel for the petitioners has placed reliance on the
\njudgments of Apex Court in Dr. B.L. Asawa Vs. State of Rajasthan & Ors,
\nAIR 1982 SC 933; Dr. Pradeep Jain & Ors. Vs. Union of India & Ors, AIR
\n1984 SC, 1420; Dr. Sachin D. Kulkarni & Ors. State of Maharashtra & Ors,
\n(1989) 2 SCC 250 and State of U.P. Vs. Budh Singh (D) By Lrs, (1997) 2
\nSCC 181.\n<\/p>\n
       Shri V.K. Singh, learned Additional Advocate General appearing
\nfor the respondents submitted that the issues raised in the writ petition
\nare fully covered by the judgment of the Apex Court in U.P. Basic
\nEducation Board Vs. Upendra Rai, (2008) 1 UPLBEC 641 and Full
\nBench Judgment in Writ Petition No. 2856\/2004, Rajeshwar Singh Vs.
\nState of U.P. decided on 15\/12\/2009. It is submitted that the Division
\nBench of this Court in Upendra Rai Vs. State of U.P.. 2000 (2) UPLBEC
\n1340 had quashed the advertisement dated 28\/4\/1999 and the Circular
\ndated 11\/8\/1997, by which advertisement for appointment to the post of
\nAssistant Teacher in Junior Basic Schools the candidates who have
\nobtained BTC, Hindustani Teachers Certificate, Junior Teachers
\nCertificates and Teachers Certificate from the institution run by the
\nGovernment of U.P. were only treated to be eligible.\n<\/p>\n
       In another Division Bench judgement of this Court in Vijai Kumar
\nKushwaha & Ors. Vs. State of U.P. & Ors (2003) 3 UPLBEC 2211, similar
\nrestrictions imposed by the Government Order dated 09\/1\/1998 for
\nadmission in BTC Course was upheld. It is submitted that the Division
\nBench judgment in Upendra Rai’s case (supra) has been disapproved by
\nthe Apex Court in U.P. Basic Education Board (supra), hence the
\nrestrictions have been upheld and further more, the similar issue which was
\nreferred to Full Bench has been answered by the Full Bench following the
\njudgment of the Apex Court in U.P. Basic Education Board (supra), hence
\nno fault can be found with the restrictions imposed by the Government
\nOrder dated 14\/11\/2008 and he petitioners are not entitled for any relief.\n<\/p>\n
       Elaborating his submission, learned counsel for the petitioners
\n                                       7<\/span><\/p>\n
contends that although in view of the judgment of the Apex Court in Dr.
\nPradeep Jain’s case (supra) it is permissible to give preference to the
\ncandidates who have obtained training from the institution within the State of
\nU.P., but neither cent percent reservation can be made in their favour nor
\nthere can be total prohibition on the candidates who have obtained
\nequivalent degrees from the institution outside the State of U.P. It is
\nsubmitted that the impugned restrictions are violative of Article 14 of the
\nConstitution of India. Referring to the judgment of the Apex Court in U.P.
\nBasic Education Board’s case (supra) learned counsel for the petitioners
\ncontends that the issues which were considered and decided in the said
\ncase were different issues. It is submitted that in U.P. Basic Education
\nBoard’s case (supra), the Apex Court had occasion to consider the statutory
\nrules providing for appointment on the post of Assistant Master or Assistant
\nMistress in Junior Basic School in Rule 8 of U.P. Basic Education (Teachers
\nService Rules, 1981). It is submitted that Rule 8, provides for appointment
\nof Teaches and the training. Qualification mentioned in the Rule were of
\nBasic Teachers Certificate (BTC), Hindustani Teachers Certificate, Junior
\nTeachers Certificate or Certificate of Teaching or any other training course
\nrecognised by the Government equivalent thereto.\n<\/p>\n
       According to the above rule, the Government was competent to
\ndeclare any training certificate equivalent to this. The Court also noticed
\nthe Government Circular dated 11\/8\/1997, by which equivalence granted to
\nvarious training certificate earlier was rescinded. The Apex Court held that
\nRule 8 operated in different field and was not over ridden by NCTE Act,
\n1993 nor any Regulation framed thereunder. The advertisement and the
\ncircular was thus found violative.\n<\/p>\n
       Following was held by the Apex Court in paragraphs 14, 15 and 19 of
\nthe said judgment which is as follows:\n<\/p>\n
       “14. The respondent admittedly got appointment after the
\n       Circular dated 11.8.1997 and hence this Circular applies to
\n       him. Admittedly, the respondent does not possess the
\n       qualification mentioned in the said Circular. He does not
\n       either possess BTC, Hindustani Teaching Certificate, JCT
\n       or Certificate of Teaching. The B.Ed Certificate is no
\n       longer regarded as equivalent to BTC after the Circular
\n                                         8<\/span><\/p>\n
       dated 11.8.1997. This was a policy decision of the U.P.
\n       Government, and it is well settled that the Court cannot
\n       interfere with policy decisions of the Government unless it
\n       is in violation of some statutory or constitutional provision.
\n       Hence, we are of the opinion that the respondent was not
\n       entitled to be appointed as Assistant Master of a Junior
\n       Basic School of U.P.\n<\/p><\/blockquote>\n
       15. Grant of equivalence and\/or revocation of
\n       equivalence is an administrative decision which is in
\n       the sole discretion of the concerned authority, and the
\n       Court has nothing to do with such matters. The matter
\n       of equivalence is decided by experts appointed by the
\n       Government, and the Court does not have expertise
\n       in such matters. Hence it should exercise judicial
\n       restraint and not interfere in it.\n<\/p><\/blockquote>\n
        19. A perusal of the NCTE Act shows that this Act was
\n       made to regulate the teachers training system and the
\n       teachers training institutes in the country. It may be
\n       mentioned that there are two types of educational
\n       institutions: (1) ordinary education institutions like primary
\n       schools, high schools, intermediate colleges and
\n       universities and (2) teachers’ training institutes. The NCTE
\n       Act only deals with the second category of institutions viz.
\n       teachers’ training institutes. It has nothing to do with the
\n       ordinary educational institutions referred to above. Hence,
\n       the qualification for appointment as teacher in the ordinary
\n       educational institutions like the primary schools, cannot be
\n       prescribed under the NCTE Act, and the essential
\n       qualifications are prescribed by the local Acts and Rules in
\n       each State. In U.P. the essential qualification for
\n       appointment as a primary schools teacher in a Junior Basic
\n       School is prescribed by Rule 8 of the U.P. Basic Education
\n       (Teachers) Service Rules, 1981 which have been framed
\n       under the U.P. Basic Education Act, 1971. A person who
\n       does not have the qualification mentioned in Rule 8 of the
\n       aforesaid Rules cannot validly be appointed as an
\n       Assistant Master or Assistant Mistress in a Junior Basic
\n       School.”<\/p><\/blockquote>\n
       The Apex Court in the above case was not considering any such
\nrestriction either in the rule or in the advertisement as has been raised in the
\npresent case. The judgment of Vijai Kumar Kushwahas case (supra) which
\nhas been relied on by Shri V.K. Singh, learned Additional Advocate General
\nfor the State respondents supports his submissions.\n<\/p>\n
       In Vijai Kumar Kushwahas case (supra) the Division Bench was
\nconsidering the similar issue of restrictions imposed by the Government
\nOrder dated 09\/1\/1998 for admission in the BTC Course.\n<\/p>\n
       Following was laid down in paragraphs 3,4,5 and 6 in Vijai Kumar
\n                                      9<\/span><\/p>\n
Kushwahas case (supra).\n<\/p>\n
      “3.Admittedly, the appellants have obtained B.Ed degrees
\n      from the State of Madhya Pradesh and not from any
\n      College\/University within the State of Uttar Pradesh. The
\n      appellants have contended that such a restriction imposed
\n      by the said Government Order is wholly arbitrary as the
\n      degrees obtained by the appellants are duly recognized
\n      under the N.C.T.E. Act and as such they were also eligible
\n      for applying against the said advertisement dated
\n      8.3.1998.\n<\/p><\/blockquote>\n
      4.      Sri Ranvijai Singh, Learned Standing Counsel
\n      appearing for the respondents has submitted that the
\n      validity of the Government Order dated 1998 has
\n      already been upheld in another Writ Petition No.29107
\n      of 1999, Alok Kumar Pandey Vs.State of U.P. decided
\n      on 19.7.1999. It has also been contended that the
\n      decision of the Government to impart condensed
\n      training of B.T.C. to only those candidates who are
\n      covered under the said Government Order, was a
\n      policy decision of the State Government and could not
\n      be interfered with or challenged in view of the decision
\n      of the Apex Court in the case of English Medium
\n      Students Parents Association Vs. State of Karnataka
\n      and others, (1994) 1 SCC 550.\n<\/p><\/blockquote>\n
      5.      The learned Single Judge dismissed the writ
\n      petition holding that it was open to the State
\n      Government to make classification in its Government
\n      Order and the Government restricted the scope of
\n      appointment only to those candidates who obtained
\n      degrees from within the State of Uttar Pradesh. Such
\n      restriction was held to be a valid restriction and could
\n      not be said to be violative of Articles 14, 16 and 21 of
\n      the Constitution of India.\n<\/p><\/blockquote>\n
      6.     Having heard learned Counsel for the parties
\n      and on perusal of the record, we are of the view that
\n      the impugned judgment and order dated 27.8.1999
\n      does not suffer from any infirmity. No ground has been
\n      made out for interference in appeal. We agree with the
\n      learned Single Judge in upholding the vires of the said
\n      Government Order dated 9.1.1998 and also the
\n      selections made in accordance with the said
\n      Government Order and also the advertisement dated
\n      8.3.1998 issued by the respondents.”<\/p><\/blockquote>\n
      Vijai Kumar Kushwahas case (supra) was not a subject matter of
\nconsideration before the Apex Court in U.P. Basic Education Board’s case
\n(supra). Much emphasis has been laid down by Shri V.K. Singh, learned
\n                                       10<\/span><\/p>\n
Additional Advocate General on the Full Bench judgment in Rajeshwar Singh’s
\ncase (supra). Although in Rajeshwar Singh’s case (supra) divergent views
\nwere taken note of in Upendra Rai’s case and Vijai Kumar Kushwahas case
\n(supra), but the Full Bench after noticing the Apex Court judgment in U.P.
\nBasic Education Board’s case (supra) did not enter into any further
\nadjudication of controversy. It is useful to extract the relevant portion of the
\nFull Bench judgment dated 15\/12\/2009 which is as follows:\n<\/p>\n
       “When these two conflicting judgments of Division Bench of
\n       this Court (supra) were placed before the Single Judge, the
\n       controversy was referred to Full Bench by order dated
\n       16.7.2004. The operative portion of term of reference is “In
\n       Upendra Rai’s case, reported in 2000 (2) UPLBEC 1340,
\n       the Division Bench of this Court has held that the
\n       restrictions imposed by the State Government are not valid
\n       and B.T.C. certificate for appointment on the post on
\n       Assistant Teacher issued by an institute situated outside
\n       the State of U.P. but recognized by the N.C.E.R.T. is valid.
\n       The other Division Bench’s judgement of this Court
\n       reported in (2003) 3 UPLBEC 2211 in Vijai Kumar
\n       Kushwaha’s case, upheld the government rights as well as
\n       Government Order which provides that the State has got
\n       right not to admit a candidate for appointment as Assistant
\n       Teacher in case the training certificate is provided by an
\n       institute situated out the State of U.P. The proposition of
\n       law as per Vijai Kumar Kushwaha’s case have been
\n       reiterated in Lalit Kumar Dixit’s case reported in (2004) 1
\n       UPLBEC 754 which Division Bench out of two lay down the
\n       correct law.”\n<\/p><\/blockquote>\n
       During the course of hearing, the judgment of the Apex
\n       Court, reported in (2008) 3 SCC 432 Basic Education
\n       Board, U.P. versus Upendra Rai and others, has been
\n       cited, in which the Supreme Court has set aside the
\n       judgment of Upendra Rai (supra) passed by a Division
\n       Bench of this Court and upheld the finding of other Division
\n       Bench judgment in the case of Vijai Kumar Kushwaha
\n       (supra).\n<\/p><\/blockquote>\n
       In view of above, the term of reference referred to this Full
\n       Bench seems to be settled by Hon’ble Supreme Court in
\n       the recent judgment referred hereinabove.
\n       Keeping in view the fact that the Supreme Court has
\n       settled the law with regard to terms of reference, no further
\n       adjudication of controversy is required by this Full Bench.
\n       The reference is answered accordingly.\n<\/p><\/blockquote>\n
       Let the paper book be sent back to the Bench concerned to
\n       decide the writ petition in accordance with law.”<\/p><\/blockquote>\n
       A perusal of the aforesaid judgment indicates that the Full Bench
\nafter noticing the Apex Court judgment in U.P. Basic Education Board’s
\ncase (supra) observed that “Supreme Court has set-aside the
\njudgment of Upendra Rai (supra) passed by a Division Bench of
\n                                       11<\/span><\/p>\n
this Court and upheld the finding of other Division Bench
\njudgment in the case of Vijai Kumar Kushwaha (supra).”\n<\/p>\n
       A perusal of the entire judgment of the Supreme Court in U.P. Basic
\nEducation Board’s case (supra) indicates that the Division Bench judgment
\nof   Vijai Kumar Kushwahas case (supra)         was neither referred to nor
\nconsidered. The issue which had arisen in Vijai Kumar Kushwahas’ case
\n(supra) was with regard to restriction for admission in Special BTC Course
\nwhich was not a subject matter of issue in Upendra Rais case (supra). The
\nobservation of the Full Bench in the case of Rajeshwar Singh’s case (supra)
\nthat the Supreme Court in U.P. Basic Education Board’s case has upheld
\nthe finding of Division Bench in Vijai Kumar Kushwahas case has been
\nmade under some mistake, since as a matter of fact Vijai Kumar
\nKushwahas case (supra) was neither considered nor approved by the
\nSupreme Court in U.P. Basic Education Board’s case (supra), hence the
\nissues which were considered in the Vijai Kumar Kushwahas case (supra),
\ncannot be said to be approved either the Apex Court in U.P. Basic
\nEducation Board’s case (supra), or by the Full Bench in Rajeswar Singh’s
\ncase (supra). The Full Bench in fact, clearly observed that in view of the
\nSupreme Court judgment in U.P. Basic Education Board’s case (supra), no
\nfurther adjudication of controversy is required. Full Bench, thus did not enter
\ninto any issues, hence it cannot be said that the Full Bench has laid down
\nany ratio to the effect that the State Government is competent to put any
\nrestriction by Government Order referred above, disqualifying              the
\ncandidates who have passed B.P.Ed, C.P.Ed, and D.P.Ed from any
\nrecognised institution outside the State of U.P. In fact, the submission of the
\nlearned counsel for the petitioners is that Vijai Kumar Kushwahas case
\n(supra) does not lay down the correct law.\n<\/p>\n
       It is submitted that the degrees granted by the recognised institution
\ncannot be discriminated. Relying on the judgments of Dr. Padeep Jain’s
\ncase (supra) and Dr. Sachin D. Kulkarni (supra) learned counsel for the
\npetitioners submitted that institutional preference can be given only with
\nregard to certain percentage of seats and in event it is 100% reservation,
\n                                       12<\/span><\/p>\n
same is violative of Article 14 of the Constitution of India. The Division
\nBench judgment in Vijai Kumar Kushwahas case (supra) has taken the
\nview that such restrictions are valid. We sitting in a co-ordinate Bench do
\nnot find it appropriate to enter into correctness or otherwise of the view
\nwhich has been taken in Vijai Kumar Kushwahas case (supra). Correctness
\nof Vijai Kumar Kushwahas case (supra) needs to be examined by a Larger
\nBench, specially in view of the submissions made by the learned counsel for
\nthe petitioners on the strength of the judgments of the Apex Court in Dr.
\nB.L. Asawa Vs. State of Rajasthan; Dr. Pradeep Jain & Ors. Vs. Union of
\nIndia & Ors, 1420; Dr. Sachin D. Kulkarni & Ors. State of Maharashtra &
\nOrs, and State of U.P. Vs. Budh Singh (D) By Lrs, (1997) (supra).\n<\/p>\n
       Thus, we are of the view that the above two questions which
\nhave been referred to cannot be said to be covered either by the Full
\nBench decision in the case of Rajeshwar Singh’s case (supra) or by
\nthe Supreme Court judgment in the case of U.P. Basic Education
\nBoards case (supra), hence it is appropriate that the aforesaid two
\nquestions be considered by the Larger Bench. In addition to the the
\nabove two questions, we add one more question to be considered by
\nthe Larger Bench which is as follows:\n<\/p>\n
       (c) Whether the Division Bench judgment in the case of Vijai
\nKumar Kushwaha & Ors Vs. State of U.P. & Ors, (2003) 3 UPLBEC
\n2211 lays down the correct law.\n<\/p>\n
       Let the papers be placed before the Hon’ble The Chief Justice for
\nconstituting a Larger Bench for considering the aforesaid three questions.\n<\/p>\n
09\/07\/2010<\/p>\n
SB
\n 13<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Jintendra Kumar Soni And Others vs State Of U.P. And Others on 9 July, 2010 Order Reserved on 21\/5\/2010. Delivered on 09\/7\/2010 Civil Misc. Writ Petition No.3733 of 2009. Jitendra Kumar Soni & Ors ………..Petitioners Versus State of U.P. & Anr ………..Respondents. With Civil Misc. Writ Petition No.2614 of 2009. Kamal Kumar […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-199448","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nJintendra Kumar Soni And Others vs State Of U.P. 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