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Rajasthan High Court · body

2012 DIGILAW 1566 (RAJ)

Manoj Kumar Sharma v. Union of India

2012-07-17

M.N.BHANDARI

body2012
JUDGMENT 1. - By this writ petition, a challenge is made to the condition No. 7 (1) (Kha) and 7(2) (Kha) of the impugned advertisement dated 2.4.2012. 2. It is stated that petitioners are already in service as Teacher though in a private school. They are held ineligible for appointment in the Government school for want of qualification of Rajasthan Teacher Eligibility Test (RTET). The condition mentioned in para 7 (1) (Kha) of the advertisement should not be applied to the petitioners in the light of the Notification issued by the NCTE on 23.8.2010 at Annexure-4. In Clauses 4 and 5 of the Notification, an exemption is given to the existing teachers yet respondents have imposed condition for qualification of RTET for all concerned. Reference of the judgment in the case of " Sushil Sompura v. State of Rajasthan", DB Civil Writ Petition No. 3964/2011, decided on 20.5.2011. , has been given wherein NCTE is directed to take a decision in respect of State of Rajasthan as to which teachers are exempted as per Clause 4 of the said Notification. A month's time was given to them for the aforesaid purpose. Accordingly, petitioners may be held eligible for selection to the post of Teacher Gr. III. 3. I have considered the submissions and perused record of the case. 4. An advertisement for appointment to the post of Teacher Gr III was issued by various Zila Parishad in the State of Rajasthan in the year 2012 i.e. much subsequent to the Notification at Annexure-4 dated 23.8.2010. The case in hand pertains to appointment to the post of Teacher Gr III. It would be necessary to indicate that by an amendment in the Constitution of India, education has been made fundamental right. After amendment in the Constitution, Parliament brought legislation for free education namely The Right of Children to Free and Compulsory Education Act, 2009 (for short 'the Act of 2009') Section 23(1) of the Act of 2009 empowers Central Government to authorise academic authority to lay down minimum qualification. The Central Government issued a Notification on 5.4.2010 authorising National Council of Teacher Education (for short 'the NCTE') to prescribe requisite qualification. The NCTE issued Notification on 23.8.2010 to provide requisite qualification at different levels i.e. Level-I and Level-II. It was then amended vide Notification dated 29.7.2011. The Central Government issued a Notification on 5.4.2010 authorising National Council of Teacher Education (for short 'the NCTE') to prescribe requisite qualification. The NCTE issued Notification on 23.8.2010 to provide requisite qualification at different levels i.e. Level-I and Level-II. It was then amended vide Notification dated 29.7.2011. Subsequent to the Notification aforesaid, State of Rajasthan issued advertisement to hold RTET through Board of Secondary Education, Rajasthan, Ajmer. The examination was conducted in the year 2011 and result was also declared. Petitioners are those who did not appear in RTET and now plea is taken pursuant to Clause 4 and 5 of the Notification dated 23.8.2010. Clause 4 and 5 of the Notification dated 23.8.2010 are reproduced here as under for ready reference "4. Teachers appointed before the date of this Notification - The following categories of teachers appointed for classes Ito VIII prior to date of this Notification need not acquire the minimum qualification specified in Para (1) above. (a) A teacher appointed on or after the 3rd September, 2001 i.e. the date on which the NCTE (Determination of Minimum Qualification for Recruitment of Teachers in Schools) Regulations, 2001 (as amended from time to time) came into force, in accordance with that Regulation: Provided that a teacher of class 1 to V possessing B.Ed. qualification, or a teacher possessing B. Ed. (Special Education) or D.Ed. (Special Education) qualification shall undergo an NCTE recognised 6 months special programme on elementary education. (b) A teacher of class I to V with B.Ed. qualification who has completed a 6 months Special Basic Teacher Course (Special BTC) approved by the NCTE; (c) A teacher appointed before the 3rd September, 2001, in accordance with the prevalent Recruitment Rules. 5. Teacher appointed after the date of this Notification in certain cases.- Where an appropriate Government, or local authority or a school has issued an advertisement to initiate the process of appointment of teachers prior to the date of this Notification, such appointment may be made in accordance with the NCTE (Determination of Minimum Qualification for Recruitment of Teachers in Schools) Regulations, 2001 (as amended from time to time)." 5. Perusal of the two clauses reveals that so far as Clauses 4 and 5 are concerned, it applies to the teacher who were appointed before the date of Notification. 6. Perusal of the two clauses reveals that so far as Clauses 4 and 5 are concerned, it applies to the teacher who were appointed before the date of Notification. 6. The question for consideration by this Court is as to whether Clause 4 applies to the petitioners who were never appointed in the Government school or the institution but are working in the private institution. If the definition of 'appropriate Government' as provided in the Act of 2009 is looked into, it makes a reference of the school held by the Central Government or the State Government or its authorities. It does not make a reference of private school. For ready reference, definition of 'appropriate Government' is quoted hereunder - "2. Definitions.- In this Act, unless the context otherwise requires,- (a) "appropriate Government" means - (i) in relation to a school established, owned or controlled by the Central Government, or the administrator of the Union Territory, having no legislature, the Central Government; (ii) in relation to a school, other than the school referred to in sub-clause (i), established within the territory of- (A) A State, the State Government; (B) a Union Territory having legislature, the Government of that Union Territory;" 7. It is not in dispute that the Notification dated 23.8.2010 has been issued pursuant to Section 23 of the Act of 2009. For ready reference, Section 23 of the Act of 2009 is also quoted hereunder - "23. Qualification for appointment and terms and conditions of service of teachers.- (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 subsection (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 subsection (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 maybe prescribed." 8. The definition of 'appropriate Government' includes the Government schools only i.e. schools controlled by the Government of India or by the State Government or by its authorities thus question of application of Rules/Notification of 2010 in reference to the recruitment would be in regard to the school where condition of requirement of qualification of TET is provided. Since petitioners are seeking appointment now in Government school(s), they are required to possess the minimum qualification provided by the NCTE under the Notification dated 23.8.2010. Even if Clause 4 is applied to the private school, petitioners can continue in the school where they are working but it cannot apply to seek fresh appointment in the Government school now. 9. So far as Clause 5 of the Notification dated 23.8.2010 is concerned, again, reference of the words 'appropriate Government' has been given and it applies where advertisement was issued prior to the date of Notification dated 23.8.2010. In the State of Rajasthan, advertisement for appointment to the post of Teacher Gr III has been issued in the year 2012 thus it is subsequent to the date of Notification thus Clause 5 of the Notification does not apply in the present matter. 10. In view of the above, petitioners can very well continue in the school(s) where they are working with the same qualification and without qualifying RTET but for new appointment or selection to Government school, they are required to possess the minimum qualification provided in the Notification dated 23.8.2010. Accordingly, a candidate, who is not in possession of RTET cannot be held entitled for appointment to the post of Teacher Gr III. 11. So, far as judgment and directions issued by the Division Bench in the case of Sushii Sompura (supra) is concerned, it does not give finding to hold that they are not required to pass RTET, rather, it makes a reference of various kinds of teachers appointed by the Government of Rajasthan thus the NCTE should specify category of teachers which are exempted as per Clause 4 of the said Notification. Pursuant to the directions the Division Bench, if NCTE specify that Clause 4 include teachers working in the private school(s) so as to give exemption from the qualification provided in the Notification dated 23.8.2010 then it will apply to the petitioners also but, presently, I am of the opinion that petitioners are not covered by the said Clause 4, being teachers in the private school and not working as teachers in the schools held by the Central Government or State Government or its authorities. 12. In view of the discussion made above, I am of the opinion that till the National Council for Teacher Education issues a Notification or issues a Clarification in regard to the teachers working in the private school, petitioners are not entitled for appointment as Teacher Gr III in the Government school pursuant to the advertisement dated 24.2.2012. 13. With the aforesaid, this writ petition so as the stay application are disposed of. Order accordingly.Order accordingly. *******