Research › Search › Judgment

Uttarakhand High Court · body

2011 DIGILAW 526 (UTT)

BALDEV SINGH v. STATE OF UTTARAKHAND

2011-08-20

SUDHANSHU DHULIA

body2011
JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) Heard Mr. D.K. Joshi and Mr. Pradeep Hairiya, Advocate for the petitioners, Mr. N.P. Sah, Standing Counsel and Mr. Anil Kumar Bisht, Brief Holder for the State of Uttarakhand, Mr. V.B.S. Negi, Assistant Solicitor General for the Union of India, Mr. Sudhir Singh, Advocate for the National Council for Teacher Education and Ms. Seema Sah, Ms. Geeta Parihar and Mr. Asif Ali, Advocates for the “Uttarakhand Vidyalayi Shiksha Parishad”. 2. While one may take a just pride in the progress the country has made since its independence, yet one cannot fail to notice some crucial sectors which remained rather neglected. “Elementary education”, being one of them. 3. All the same, things are now looking for better with the Right to Education being incorporated as a Fundamental Right, in Part III of the Constitution of India, vide Constitution (Eighty Sixth Amendment) Act. The newly incorporated provision which is Article 21-A of the Constitution of India reads as follows :- “21-A. Right to education. – The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.” 4. In furtherance to the above, the Parliament enacted a legislation known as, Right to Children to Free and Compulsory Education Act, 2009 (from hereinafter referred to as the Act), which not only seeks to provide every child a right to elementary education, but a right to a “meaningful” elementary education. 5. One of the important features of this Act is that it seeks to give the nation a better quality of teachers who will impart elementary education, which has now become compulsory. Before this Court is now under challenge the validity of a “test” known as “Teachers Eligibility Test” (for short, TET) which one must qualify with 60% of marks, in order to become eligible as a teacher in an elementary school. What is also challenged before this Court is the “eligibility” prescribed for a candidate to even appear for this test i.e. TET. This Court has been called upon to examine the validity of the above two conditions. 6. Prior to the constitutional 86th Amendment free and compulsory education for all children (upto 14 years of age) was in Part IV of the Constitution of India as a Directive Principle of State Policy. This Court has been called upon to examine the validity of the above two conditions. 6. Prior to the constitutional 86th Amendment free and compulsory education for all children (upto 14 years of age) was in Part IV of the Constitution of India as a Directive Principle of State Policy. Article 45 of the Constitution of India reads as follows :- “45. Provision for early childhood care and education to children below the age of six years. – The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.” 7. Now from a mere directive to the State, as it was earlier, it is now a Fundamental Right, which is Article 21-A of the Constitution of India as now “the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine”. In furtherance thereof came the Act already referred above. The statement of Objects and Reasons of this Act reflect the importance of this legislation, where it is stated thus – “over the years there has been significant spatial and numerical expansion of elementary schools in the country, yet the goal of universal elementary education continues to elude us. The number of children, particularly children from disadvantaged groups and weaker sections, who drop out of school before completing elementary education, remains very large. Moreover, the quality of learning achievement is not always entirely satisfactory even in the case of children who complete elementary education”. The number of children, particularly children from disadvantaged groups and weaker sections, who drop out of school before completing elementary education, remains very large. Moreover, the quality of learning achievement is not always entirely satisfactory even in the case of children who complete elementary education”. What the Act seeks was also summarized in its Objects and Reasons as follows :- “(a) that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards; (b) “compulsory education” casts an obligation on the appropriate Government to provide and ensure admission, attendance and completion of elementary education; (c) “free education” means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education; (d) the duties and responsibilities of the appropriate Governments, local authorities, parents, schools and teachers in providing free and compulsory education; and (e) a system for protection of the right of children and a decentralized grievance redressal mechanism.” 8. It further states that the values of our constitution of equality, social justice and democracy and in fact the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all as “Provision of free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections is, therefore, not merely the responsibility of schools run or supported by the appropriate Governments, but also of schools which are not dependent on Government funds”. 9. We shall now examine some of the important provisions of the Act. “Child” has been defined under Section 2(c) of the Act, which reads as under :- “(c) “Child” means a male or female child of the age of six to fourteen years.” “Elementary education” has been defined under Section 2(f) of the Act, which reads as under :- “(f) “elementary education” means the education from first class to eighth class;” 10. Section 3 which is its most important section and which actually gives right to a child, as proposed under the Act, reads as follows :- (3) Right to child to free and compulsory education. Section 3 which is its most important section and which actually gives right to a child, as proposed under the Act, reads as follows :- (3) Right to child to free and compulsory education. – (1) Every child of the age of six to fourteen years shall have a right to free and compulsory education in a neighbourhood school till completion of elementary education. (2) For the purpose of sub-section (1), no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education: Provided that a child suffering from disability, as defined in clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection and Full Participation) Act, 1996 (1 of 1996), shall have the right to pursue free and compulsory elementary education in accordance with the provisions of Chapter V of the said Act.” 11. Further there are special provisions in the Act for a child who is not admitted to or who has not completed elementary education, which is under Section 4 of the Act. Duties have been caste upon the appropriate Government i.e. the Central, State or the Union Territory, as the case may be, under Section 8 of the Act, who are to provide free and compulsory education to every child. Under Section 10 of the Act a duty has also been caste upon parents and guardians. Further under Section 10, non-governmental schools can only establish and impart elementary education if they are duly recognized. Norms and standards have been set for such schools under Section 19 of the Act. There is now to be strictly followed a Pupil-Teacher ratio set up under Section 25 read with the schedule of the Act. There are other controlling and regulatory mechanisms under the Act which we may not be necessary for us to discuss in the present case. All the same, a bare examination of the provisions of this Act reveal that not only is elementary education has now to be free and compulsory but this education has to be a meaningful education of a certain standard which would in turn mean that those who have been assigned the duty of imparting this elementary education must be competent. 12. Section 23 of the Act addresses this issue, which reads as follows :- “23. 12. Section 23 of the Act addresses this issue, which reads as follows :- “23. (1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher. (2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification; Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years. (3) The salary and allowances payable to, and the terms and conditions of service of, teacher shall be such as may prescribed.” 13. Therefore under Section 23(1) of the Act only a person possessing such minimum qualification, as laid down by an academic authority (duly authorized by the Central Government) shall be eligible for appointment as a teacher in an elementary school The academic authority which has been authorized by the Central Government to prescribe such minimum qualifications is a body known as “National Council for Teacher Education” (from hereinafter referred to as NCTE or the Council). 14. Thus, authorized and duly notified by the Central Government under Section 23 (1) of the Act, NCTE had published a notification on 23.8.2010 (annexed as Annexure No. 3 to the leading writ petition). The said notification prescribes qualifications of teachers in elementary schools. 14. Thus, authorized and duly notified by the Central Government under Section 23 (1) of the Act, NCTE had published a notification on 23.8.2010 (annexed as Annexure No. 3 to the leading writ petition). The said notification prescribes qualifications of teachers in elementary schools. The notification opens as under :- “In exercise of the powers conferred by Sub-section (1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009), and in pursuance of Notification No. S.O. 750 (E) dated 31st March, 2010 issued by the Department of School Education and Literacy, Ministry of Human Resource Development, Government of India, the National Council for Teacher Education (NCTE) hereby lays down the following minimum qualifications for a person to be eligible for appointment as a teacher in class I to VIII in a school referred to in clause (n) of Section 2 of the Right to Children to Free and Compulsory Education Act, 2009, with effect from the date of this notification.” 15. This notification divides the category of teachers as well as category of school in elementary education into two. First is from class I – class V, which is known as primary school and the second is class VI – VIII, which is known as senior primary school also known as junior high school, in the State of Uttarakhand. It prescribes minimum qualification for teachers as under : “Minimum Qualifications:- Classes I-V (a) Senior Secondary (or its equivalent) with at least 50% marks and 2 years Diploma in Elementary Education (by whatever name known) OR Senior Secondary (or its equivalent) with at least 45% marks and 2 years Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002. OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor of Elementary Education (B.El.Ed.) OR Senior Secondary (or its equivalent) with at least 50% marks and 2 year Diploma in Education (Special Education) AND (b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose. Classes VI-VIII (a) B.A./B.Sc. and 2 year Diploma in Elementary Education (by whatever name known) OR B.A./B.Sc. Classes VI-VIII (a) B.A./B.Sc. and 2 year Diploma in Elementary Education (by whatever name known) OR B.A./B.Sc. with at least 50% marks and 1 year Bachelor in Education (B.Ed.), in accordance with the NCTE (Recognition Norms and Procedure), Regulations issued from time to time in this regard. OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor of Elementary Education (B.El.Ed.) OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year B.A./B.Sc. Ed. Or B.A.Ed./B.Sc.Ed. OR B.A./B.Sc. with at least 50% marks and 1 year B.Ed. (Special Education) AND (b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose. 16. We are presently concerned only with the teachers qualification relating to classes from I to V. Clause 3 of the said notification, creates an interesting classification, which reads as follows :- “3 Training to be undergone:- A person (a) with B.A./B.Sc. with at least 50% marks and B.Ed. qualification shall also be eligible for appointment for class I to V upto 1st January, 2012, provided he undergoes, after appointment an NCTE recognized 6 months special programme in Elementary Education. (b) With D.Ed. (Special Education) or B.Ed. (Special Education) qualification shall undergo, after appointment, an NCTE recognized 6 months special programme in Elementary Education.” 17. Consequent to the said notification by the Council, the State of Uttarakhand issued a Government Order on 29.4.2011 whereby it has invited applications from “eligible candidates” for an examination which is Teachers Eligibility Test (for short, TET). The eligibility and the qualifications for a candidate to appear in this test are the same as fixed by the Council vide its notification dated 23.8.2010. This examination which was earlier to be held in July, 2011 was subsequently postponed and now it is to be held on 27.8.2011. 18. We must note here that though the Council (i.e. NCTE) vide its notification dated 23.8.2010 has laid down the requirement for a teacher in an elementary school. It has done so fixing different parameters for primary school (i.e. from Class I to Class V) and senior primary school (i.e. from Class VI to Class VIII). The present TET examination for which the Government of Uttarakhand has issued a Government Order dated 29.4.2011 is only for primary schools (i.e. Class I to Class V). It has done so fixing different parameters for primary school (i.e. from Class I to Class V) and senior primary school (i.e. from Class VI to Class VIII). The present TET examination for which the Government of Uttarakhand has issued a Government Order dated 29.4.2011 is only for primary schools (i.e. Class I to Class V). 19. All the petitioners before this Court are graduates with an additional qualification of B.Ed., yet all of them have done their graduation with less than 50% marks. Therefore, evidently they are not even qualified to appear in the TET examination. 20. The challenge of the petitioners against the said examination (TET) is on two grounds. The principal contention of the petitioners is against this test (TET). The argument here is that petitioners have already obtained a degree of B.Ed., by which they are qualified to teach. Placing another essential qualification which is to secure at least 60% qualifying marks in this test is violative of their rights and if at all such a provision can be justified, then it must act prospectively and not retrospectively. Meaning thereby that TET should not be applicable to those B.Ed. qualified candidates who have already obtained this degree and should only be applicable to such candidates who are either presently undergoing or propose to undergo such qualification i.e. B.Ed. qualification. 21. This proposition of the petitioners though has to be rejected at the very threshold. The reasons are as under :- 22. We have already noticed in detail the object of the Act, which is, inter alia, to improve the standard of elementary education in our country. The Act strives to give to our children an elementary education through better trained and better qualified teachers. If the Act and the subsequent notification issued by the NCTE raises the scale for these teachers, such an effort is in public interest and not against it. Moreover such an action on the part of either NCTE or the State Government does not violate or invade any right of the petitioners, much less any fundamental or constitutional right. Moreover, the Division Bench of Rajasthan High Court, to which we shall refer in some detail later in this judgment, has already upheld the validity of the test i.e. TET. This Court is in full agreement with the views expressed by the Hon’ble Rajasthan High Court in this regard. Moreover, the Division Bench of Rajasthan High Court, to which we shall refer in some detail later in this judgment, has already upheld the validity of the test i.e. TET. This Court is in full agreement with the views expressed by the Hon’ble Rajasthan High Court in this regard. Moreover, the conditions and eligibility, etc. for such teachers are being given under a Central statute, which is under Entry 66 of List I of the Union List of Seventh Schedule, the same will have an overriding effect, over any State legislation. No interference therefore can be made regarding this prayer of the petitioner and it stands rejected. 23. The second prayer of the petitioners, which different petitioners have moulded differently, but in sum and substance it is a challenge to the condition in clause 3 of the notification dated 23.8.2010 and the subsequent Government Order of the State dated 29.4.2011 whereby only such B.Ed. qualified candidates can appear in the TET examination who have a minimum percentage of 50% in their graduation. According to the petitioners such a condition is violative of Article 14 of the Constitution of India as it creates a class legislation. We need to examine this proposition and the prayer. 24. The petitioners before this Court are graduates, who have an additional qualification with them, which is B.Ed. Now B.Ed. is actually not a specialized qualification which trains a candidate to impart education in an elementary school. The training or the certificate, which is focused on this specialization, is a diploma or a certificate in elementary education. If we notice carefully NCTE in its notification dated 23.8.2010 has given “diploma in elementary education” as the essential qualification and B.Ed. in clause 3, is only an exception created for a limited period till 1.1.2012. In the State of Uttarakhand, such a diploma or certificate in elementary education is known as ‘B.T.C.’, which stands for Basic Teaching Certificate. Presently, apart from the B.T.C. candidates, even such persons, who have B.Ed., have been treated to be eligible, but only for a period till 01.01.2012 (vide NCTE notification dated 23.8.2010 and subsequent Government Order dated 29.4.2011). The reasons why this concession has been granted is not far to seek. As this Court has been informed, there are a number of posts of teachers lying vacant in elementary schools for which there are not enough B.T.C. trained candidates. The reasons why this concession has been granted is not far to seek. As this Court has been informed, there are a number of posts of teachers lying vacant in elementary schools for which there are not enough B.T.C. trained candidates. In the State of Uttarakhand, this definitely is a ground reality. In short, it is a case of demand being more than the supply. In order to meet this demand, the State of Uttarakhand and earlier the erstwhile State of Uttar Pradesh have made concessions as far as the eligibility of teacher is concerned. Even though B.T.C. was an essential qualification, yet B.Ed. or at times even the C.P.Ed. (Certificate in Physical Education) or D.P.Ed. (Diploma in Physical Education) were treated to be an eligibility for this job. Though, in addition to this, they were required to undergo a special B.T.C. training course. We must add at this juncture that even at present i.e. in the notification dated 23.8.2010 and the subsequent Government Order of the State Government, such B.Ed. candidates must undergo a special training before they would finally become eligible to teach elementary classes. What is relevant for our purposes is that having been conscious of this obvious shortfall of B.T.C. trained candidates, NCTE has made a ‘one-time concession that even a B.P.Ed. candidate shall be eligible (till 01.01.2012). But here there is an important difference, whereas a B.T.C. trained candidate only has to be a Senior Secondary (Class XII) a B.P.Ed. candidate has to be a graduate. Moreover, he has to be a graduate with at least 50% of marks in his graduation. It is this condition of having at least minimum 50% marks in graduation, which remains the challenge in these writ petitions. 25. At this stage we must take a note that even though this is an important matter the NCTE, which is represented before this Court by a learned counsel, has not filed its counter affidavit, though repeated opportunities were given to it to file the same. The counsel though on his part has made sincere efforts in taking this Court to the various notifications passed by NCTE and has justified the stand of NCTE stating that percentage of marks cannot be an issue and therefore the classification as is being presented by the petitioners does not exist at all. 26. The counsel though on his part has made sincere efforts in taking this Court to the various notifications passed by NCTE and has justified the stand of NCTE stating that percentage of marks cannot be an issue and therefore the classification as is being presented by the petitioners does not exist at all. 26. The State Government has filed its counter affidavit in which it has only stated that it is bound by the directions and guidelines of the NCTE and since the NCTE has given these guidelines in its notification dated 23.8.2010, they are being followed by the State Government. Nothing further has been stated by the State Government in its counter affidavit while justifying its stand of the condition imposed by it in its Government Order dated 29.4.2011. The remaining respondents which is “Uttarakhand Vidyalayi Shiksha Parishad” or the Board has more or less reiterated the position of the State Government. 27. First, we must refer to the background of this statutory body known as “NCTE”. National Council for Teacher Education is a body incorporated under a stature known as “National Council for Teacher Education Act, 1993 (No. 73 of 1993). It was an Act to provide for the establishment of a National Council for Teacher Education with a view to achieving planned and co-ordinated development of teacher education system throughout the country and also for the regulation and proper maintenance of norms and standards in the teacher education system and for matters connected therewith. 28. The Act was enforced w.e.f. 1st July, 1995 by virtue of notification issued by the Central Government under Section 1(3) of the 1993 Act. It must also be stated that the National Council for Teacher Education Act, 1993 has been enacted by Parliament in exercise of power under Entry 66 of List 1 of the Union List of Seventh Schedule, which is as follows :- “66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.” 29. Section 3(1) of Act No. 73 of 1993 establishes a Council (which we are presently referring to as NCTE). Section 3(1) reads as follows :- “Section 3(1) with effect from such date as the Central Government may, by notification in the Official Gazette, appoint, there shall be established a Council to be called the National Council for Teacher Education.” 30. Section 3(1) of Act No. 73 of 1993 establishes a Council (which we are presently referring to as NCTE). Section 3(1) reads as follows :- “Section 3(1) with effect from such date as the Central Government may, by notification in the Official Gazette, appoint, there shall be established a Council to be called the National Council for Teacher Education.” 30. The Council was established and became functional w.e.f. 1.7.1995. Section 3(1) reads as follows :- “Section 3(1) with effect from such date as the Central Government may, by notification in the Official Gazette, appoint, there shall be established a Council to be called the National Council for Teacher Education.” 30. The Council was established and became functional w.e.f. 1.7.1995. Functions of this Council have been given in Section 12, which reads as under :- “FUNCTIONS OF THE COUNCIL It shall be the duty of the Council to take all such steps as it may think fit for ensuring planned and co-ordinated development of teacher education and for the determination and maintenance of standards for teacher education and for the purposes of performing its functions under this Act, the Council may – (a) undertake surveys and studies relating to various aspects of teacher education and publish the result thereof; (b) make recommendations of the Central and State Government, Universities, University Grants Commission and recognised institutions in the matter of preparation of suitable plans and programmes in the field of teacher education; (c) co-ordinate and monitor teacher education and its development in the country; (d) lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognised institutions; (e) lay down norms for any specified category of courses or trainings in teacher education, including the minimum eligibility criteria for admission thereof, and the method of selection of candidates, duration of the course, course contents and mode of curriculum; (f) lay down guidelines for compliance by recognised institutions, for starting new courses or training, and for providing physical and instructional facilities, staffing pattern and staff qualification; (g) lay down standards in respect of examinations leading to teacher education qualifications, criteria for admission to such examinations and schemes of courses or training; (h) lay down guidelines regarding tuition fees and other fees chargeable by recognised institutions; (i) promote and conduct innovation and research in various areas of teacher education and disseminate the results thereof; (j) examine and review periodically the implementation of the norms, guidelines and standards laid down by the Council, and to suitably advise the recognised institution; (k) evolve suitable performance appraisal system, norms and mechanism for enforcing accountability on recognised institutions; (l) formulate schemes for various levels of teacher education and identify recognised institutions and set up new institutions for teacher development programmes; (m) take all necessary steps to prevent commercialisation of teacher education; and (n) perform such other functions as may be entrusted to it by the Central Government” 31. Section 14, which is an extremely important provision states that every institution which is either offering or which intends to offer a course or training in teacher education, on or after the appointed day must get a recognition from the Council (i.e. NCTE). Such institutions which were already imparting training of teacher education at the time when the Council came into existence, for them Proviso to Clause 1 of Section 14 states that these institutions may continue, but they must apply for such recognition within a period of six months from the date of notification. These institutes further have to take permission from the Council before they start a new course, under Section 15. Moreover, under Section 16 of the Act, even affiliating body (such as a ‘University’) can only grant such affiliation or hold examinations, after the Council has granted recognition to these institutions. 32. After the NCTE had come into existence no institute could impart a B.Ed. degree of any useful purpose, if such a degree was not recognized by NCTE. The NCTE had laid down certain parameters and requirements for an institute and the degree before it could be so recognized. 33. Now, it is undisputed that all the petitioners before this Court have done their B.Ed. from an institute, which is duly recognized by NCTE. The NCTE, since its inception and under the duty cast upon it, has been prescribing qualifications for a candidate to sit for admission in B.Ed. courses. This at various time also involved qualifying a written examination. One of the essential conditions was that a candidate must be a graduate from a recognized university but there was no minimum percentage of marks one had to get in graduation in order to get admission in B.Ed. course. Therefore, a simple pass graduate was entitled to get admission in B.Ed. from what has been stated before this Court, it appears that for the first time, a condition was imposed by NCTE vide its notification dated 27.09.2007, which stipulated that only such graduates, who have procured minimum 45% marks, in their graduation would get admission in B.Ed. course. We have also noticed that prior to 27.09.2007, there was no such condition for a candidate having done his graduation, for becoming eligible for B.Ed. course. This condition of 45% was further increased to 50% by NCTE vide its notification dated 31.08.2009. course. We have also noticed that prior to 27.09.2007, there was no such condition for a candidate having done his graduation, for becoming eligible for B.Ed. course. This condition of 45% was further increased to 50% by NCTE vide its notification dated 31.08.2009. Now after 31.08.2009, only a graduate having minimum 50% marks in his graduation was qualified to get admission in a duly recognized B.Ed. course. 34. What is therefore very clear is that in its notification dated 23.8.2010, the NCTE has imposed a minimum percentage of 50 per cent marks in graduation for the reasons that in its last notification (i.e. notification dated 31.8.2009) it had already imposed a benchmark of 50 percent marks in graduation for such graduates who wish to take admission in a duly recognized B.Ed. course. 35. Therefore such B.Ed. degree holders, prior to 2007, who had percentage in their graduation less than 45% were still holding a duly recognized B.Ed. degree. Can such a person be debarred by NCTE (where such a person holds a degree duly recognized by it). Nevertheless, by implication though what NCTE has done precisely this. By imposing an unreasonable restriction of 50% here it has made its own degree invalid. Logically therefore the graduates who are before this Court have obtained less than 50% marks in their graduation are eligible, as they have completed their B.Ed. prior to 27.09.2007 when there was no such restriction and their B.Ed. degree was recognized from NCTE. Nevertheless they are ineligible to even appear in TET. The fact that this condition is unreasonable is reflected in the vacillating attitude of NCTE as well as State Government, who have during the pendency of the writ petitions before this Court, reduced the scale of 50% now to 45%. 36. The Government Order dated 30.6.2011 annexed by the State Government in its counter affidavit, only states that this restriction is being reduced from 50% to 45% but the restriction of 50% would remain for such B.Ed. candidates who got admitted in a B.Ed. course after 31.8.2009. We have already noticed above that 31.8.2009 is the date by which the NCTE had earlier raised the percentage from 45% to 50%. In other words, the State has reverted to pre 31.8.2009 condition. candidates who got admitted in a B.Ed. course after 31.8.2009. We have already noticed above that 31.8.2009 is the date by which the NCTE had earlier raised the percentage from 45% to 50%. In other words, the State has reverted to pre 31.8.2009 condition. Consequently many of the petitioners before this Court who had a percentage marks in graduation less than 50% though more than 45% have now became eligible. These writ petitions were therefore disposed of accordingly and therefore grievance of many candidates already stands redressed. 37. Now since the State Government itself has reverted back to the pre 31.8.20099 position and this Court has been informed that this has been done under instructions from NCTE, what was holding back the State from reverting back to pre 27.9.2007 position, as logically this had to be followed. 38. The petitioners left before this Court are those petitioners, who have a B.Ed. degree from a recognized institute but they are graduates with less than 45% in graduation. All these petitioners have done their B.Ed. when the 45% condition in graduation was not in force. 39. The only reasonable condition should be B.Ed. qualification, irrespective of one having any percentage of marks in his graduation. If one has done his B.Ed. from a recognized institute then this qualification cannot now be washed out. What is of relevance therefore is that a candidate must have a recognized B.Ed. qualification with graduation. It is B.Ed. qualification which is important and not the percentage one has attained in his graduation, for the simple reason that even under NCTE instructions and guidelines there was different requirement in different periods for having obtained a particular percentage in graduation. 40. A full Bench of Allahabad High Court in Bhupendra Nath Tripathi & others Vs. State of U.P. & others reported in (2009) 1 UPLBEC 1 has recently held that a person who has done his B.Ed. from a recognized institute will not be ineligible to appear in a special B.T.C. examination (again conducted under the guidelines of NCTE) merely for the reasons that his B.Ed. degree at the relevant time was not recognized by the NCTE. Such condition the Full Bench of Allahabad High Court has held shall always act prospectively and not retrospectively. 41. In the above case, three questions framed by the Division Bench of the Hon’ble Allahabad High Court were referred to the Full Bench. degree at the relevant time was not recognized by the NCTE. Such condition the Full Bench of Allahabad High Court has held shall always act prospectively and not retrospectively. 41. In the above case, three questions framed by the Division Bench of the Hon’ble Allahabad High Court were referred to the Full Bench. One of the questions before the Full Bench was “whether the exclusion of those candidates from field of eligibility for Special B.T.C. Course 2007 who have obtained B.Ed. Degree prior to enforcement of 1993 Act or after the enforcement of 1993 Act during the period when the application of the Institution or the University was pending consideration, is arbitrary and unreasonable violative of Articles 14 & 16 of the Constitution of India?” 42. On this question, after a detail discussion of the law on the subject (Bhupendra Nath Tripathi & others Vs. State of U.P. & Others (2009) 1 UPLBEC 1), the Full Bench decided the said question as follows :- “The exclusion of the candidates from the field of eligibility for Special Training Course 2007, who have obtained B.Ed. Degree prior to enforcement of National Council for Teacher Education Act, 1993 or after the enforcement of National Council for Teacher Education Act, 1993 during the period when the application of the institution or the University was pending consideration – is arbitrary, unreasonable and violative of Articles 14 & 16 of the Constitution of India. The above two categories of candidates are also eligible to participate in Special Basic Training Course 2007.” 43. A perusal of the said judgment shows that primarily the Full Bench had taken such a view because a degree which is valid at a certain given time will not become invalid subsequently, for the reasons that restrictions or conditions imposed in future will only act prospectively and not retrospectively. 44. There is another aspect to the present issue which is that the condition of having a minimum percentage of marks in graduation for the B.Ed. qualified candidates has no reasonable nexus with the objects sought to be achieved! The object here is to provide qualified candidates as teachers in elementary school. The qualifications have already been set up i.e. B.T.C., or B.Ed., as the case might be. Thus creating two kinds of graduates with B.Ed. qualified candidates has no reasonable nexus with the objects sought to be achieved! The object here is to provide qualified candidates as teachers in elementary school. The qualifications have already been set up i.e. B.T.C., or B.Ed., as the case might be. Thus creating two kinds of graduates with B.Ed. qualifications i.e. one has less than 50 per cent of marks and the other having more than 50 per cent marks is an unreasonable classification, which has no nexus with the objects sought to be achieved. 45. Since this classification has been attacked by the petitioners being unreasonable and unjust. It has to be examined on the touchstone of Article 14 of the Constitution of India. 46. A reasonable classification is not forbidden by Article 14 of the Constitution of India, but while doing so, the classification must show that it has been done reasonably and that there is an “intelligible differentia” with the class it seeks to set apart. These are by now settled principles and there are a catena of judgments of the Hon’ble Apex Court on this aspect. We will only refer to two. The first being one of the oldest, which dates back to the year 1955, and the other being more recent i.e. of the year 2010. The first decision one is referring to is Budhan Choudhry and others Vs. State of Bihar reported in AIR 1955 SC 191. The Constitution Bench of the Hon’ble Apex Court held as under :- “It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to object or occupations or the like. What is necessary is that (iii) there must be a nexus between the basis of classification and the object of the Act under consideration.” 47. The classification may be founded on different bases; namely, geographical, or according to object or occupations or the like. What is necessary is that (iii) there must be a nexus between the basis of classification and the object of the Act under consideration.” 47. More recently the Hon’ble Apex Court in B. Manmad Reddy and others v. Chandra Prakash Reddy and others reported in (2010) 3 SCC 314, while examining the service rules pertaining to the State of Andra Pradesh where the Hon’ble Apex Court was called upon to determine “whether persons drawn from different sources and integrated into one class/cadre/category can be classified into separate categories for purposes of promotion on the basis of the source from which they were drawn”. Hon’ble Apex Court held that such a classification is violative of Article 14 of the Constitution of India and while doing so the Hon’ble Apex Court stated as follows:- “18....... There is no gainsaying that classification must rest on a reasonable and intelligible basis and the same must bear a nexus to the object sought to be achieved by the statute. By its very nature classification can and is often fraught with the danger of resulting in artificial inequalities which make it necessary to subject the power to classify to restraints lest the guarantee of equality becomes illusory on account of classification being fanciful instead of fair, intelligible or reasonable.” 48. As we have already discussed above, there is no intelligible differentia between a candidate having less than 50 per cent and a candidate having more than 50 per cent in his graduation, in order to determine eligibility to appear in TET examination. In any case, when ability of a candidate has to be finally judged by the percentage of marks he obtains in TET examination which is whether he qualifies with more than 60 per cent marks in TET or not, it would be both unreasonable and unfair to bar a candidate who has obtained 49 per cent marks in graduation from appearing in this examination, for the simple reason that there is always a possibility that he may secure higher in the TET examination than a candidate who has obtained more than 50 per cent marks in his graduation. Such a classification though at some other place may be justified and reasonable such as where a candidate is to be admitted to a higher course of learning in the same stream but presently, for the reasons stated above, it does not seem to be so. This requirement is unreasonable and violative of Article 14 of the Constitution of India. 49. The petitioners have also placed before this Court a judgment of a Division Bench of the Hon’ble Rajasthan High Court passed in Writ Petition No. 3964 of 2011 Sushil Sompura and others Vs. State (Education) and others alongwith other connected matters on 20.5.2011. This judgment is a part of record before this Court. The petitioners before the Hon’ble Rajasthan High Court had also sought the same relief, which was, inter alia, quash the Gazette Notification dated 23.8.2010 issued by NCTE, whereby the qualification to be eligible for appointment as a teacher was TET. Prayer was also made by the petitioner to quash the condition of having minimum 45 per cent or 50 per cent marks in graduation. Whereas the Division Bench of Rajasthan High Court had upheld the validity of TET test being conducted by the Government (in that case the Rajasthan Government) under the guidelines of NCTE, as it has already been referred to in the preceding paragraphs of the judgment but regarding a candidate having minimum percentage of marks in graduation, the Court had this to say while adjudicating the matter:- “The respondents shall not insist on the qualification of having 45% or 50% marks, as the case may be, in the bachelor’s degree or master’s degree etc. or any other equivalent qualification, in case incumbents have obtained admission in the requisite courses such as B.A., B.Com., B.Sc., B.Ed., B.El.Ed., Senior Secondary etc. prior to prescription of the minimum qualifying marks by NCTE vide notifications dated 27.9.2007 and 31.8.2009. It is made clear that the incumbents, who have obtained the B.Ed. etc. before the minimum qualifications were prescribed vide notifications dated 27.9.2007 and 31.8.2009 shall be allowed to appear in TET Examination.” 50. The learned counsel appearing for the NCTE Mr. Sudhir Singh though has pointed certain other relevant paragraphs of the Division Bench of Rajasthan High Court which must also be read here in order to make things clear. etc. before the minimum qualifications were prescribed vide notifications dated 27.9.2007 and 31.8.2009 shall be allowed to appear in TET Examination.” 50. The learned counsel appearing for the NCTE Mr. Sudhir Singh though has pointed certain other relevant paragraphs of the Division Bench of Rajasthan High Court which must also be read here in order to make things clear. The learned counsel would submit that such a decision reached by the Division Bench of Rajasthan High Court was on the basis of the concession made by the NCTE before the Hon’ble Court. Relevant paragraph are as follows:- “The relief prayed by the petitioners stands satisfied in view of the agreement expressed on behalf of NCTE to the effect that in case they have passed B.A, B.Sc., B.Com., Senior Secondary or its equivalent qualification and obtained admission in the requisite courses such as B.Ed., B.El.Ed. D.Ed. etc. as mentioned in para-I of the Notification dated 23.8.2010, prior to the prescription of the minimum qualifying marks by NCTE in Bachelor’s degree or master’s Degree etc. or any other qualification equivalent thereto vide notifications dated 27.9.2007 and 31.8.2009, the minimum qualification of having 45% or 50% marks, as the case may be, in the bachelor’s degree or master’s degree etc. or any other equivalent qualification, shall not be insisted as stated by Mr. Kuldeep Mathur, learned counsel appearing on behalf of the NCTE on being instructed by Regional Director, NCTE. Thus, the major grievance of the petitioners that their qualifications of B.Ed. B.El.Ed. etc. mentioned in para 1 are being derecognized with retrospective effect when there was no prescription of minimum qualifying marks of 45% or 50%, as the case may be, stands redress in view of the statement made by learned counsel appearing on behalf of the NCTE. It has been further stated by the learned counsel for the NCTE that for the first time, de-novo qualifications were prescribed by the NCTE vide Notification dated 27.9.2007 and further, qualifications were prescribed vide Notification dated 31.8.2009 and in case admission has been taken by the incumbents in any of the courses of B.Ed. B.El.Ed. etc. as mentioned in para-1 of the Notification dated 23.8.2010 prior to aforesaid dates, they shall not insist for having 45% or 50% marks, as the case may be, in qualifying examination for aforesaid course. Thus, respondnets have to allow aforesaid incumbents in TET examination, 2011.” 51. B.El.Ed. etc. as mentioned in para-1 of the Notification dated 23.8.2010 prior to aforesaid dates, they shall not insist for having 45% or 50% marks, as the case may be, in qualifying examination for aforesaid course. Thus, respondnets have to allow aforesaid incumbents in TET examination, 2011.” 51. Apparently, therefore, the restriction of a minimum percentage of marks in graduation (45% or 50% as the case might be) is not going to be enforced by NCTE, as it is evident from the above paragraph, as these were the instructions of the Regional Director, NCTE to its counsel before the Hon’ble Rajasthan High Court. The counsel representing NCTE Mr. Sudhir Singh has fairly submitted before this Court that he also gets his instructions from the same Regional Director, NCTE, yet there are no such instruction with him. That being the factual position, we leave it at that. 52. However, even assuming for the sake of argument that the above decision of the Hon’ble Rajasthan High Court does not help the case of the petitioners, yet this Court is of a considered view, as it has already been discussed in the preceding paragraphs, that such a restriction (of having minimum percentage in graduation) is both unreasonable, unjust and violative of Article 14 of the Constitution of India. Therefore, this Court declares such condition of asking a minimum percentage of marks in graduation from those candidates who are B.Ed. qualified in NCTE notification dated 23.8.2010 and subsequent State Government Order dated 29.4.2011 as violative of Article 14 of the Constitution of India. Further this Court directs the respondents to permit the petitioners to appear in TET examination treating them to be qualified under Clause 3 of the notification dated 23.8.2010 and State Government Order dated 29.4.2011. 53. With the above observations, all these writ petitions are disposed of accordingly. 54. No order as to costs.