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2012 DIGILAW 346 (HP)

Anchal Sharma v. State of H. P.

2012-06-16

DHARAM CHAND CHAUDHARY

body2012
JUDGMENT : Dharam Chand Chaudhary, J. By means of the present writ petition, the petitioners have claimed the following relief: (i) That the respondents may kindly be directed to consider the Petitioners for appointment to the posts of JBT Teachers, on the basis of the counselling held on 27.12.2011 pursuant to the Memo issued at Annexure P-16. 2. Admittedly the petitioners were sponsored by the 2nd respondent to undergo Trained Teachers Certificate Course (in short TTC Course) from St. Bedes College, Shimla in June 2008. The duration of the Course was of two years. They successfully completed this Course in June 2010 (Certificates Annexures P-1 to P-15). The petitioners vide communication (Annexure P-16) were asked to furnish their bio-data to the 2nd respondent on or before 20.12.2011 and thereafter to appear in counselling on 27.12.2011. All the petitioners had furnished their bio-data to the 1st respondent and also appeared in the counselling held on 27.12.2011. 3. The only grouse of the petitioners as brought to this Court in the present writ petition is that 20 posts of JBT Teachers are lying vacant and they being eligible under the Rules and having been considered for appointment as such, have not been appointed so far. On inquiry, they came to know that the respondents have withheld their appointment on the pretext that they are required to qualify the Teachers Eligibility Test (in short TET) before consideration of their candidature for appointment to the post in question. 4. In nutshell, it has been claimed that in view of there being no TET test prescribed under the existing Recruitment and Promotion Rules, the respondents are not justified in withholding their appointments to the posts in question. 5. On the other hand, as per the stand taken by the respondents, in view of coming into force the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as RTE Act) and the Rules framed thereunder, the TET test is essentially required to be qualified with prescribed standard for being considered to the posts of JBT teachers. Also that the petitioners have not qualified the test and as the relaxation to exempt the petitioners from qualifying such test sought from the Government of India, has been declined vide a recent communication dated 26.3.2012 (Annexure R-1), it is for this reason that the offer of appointment pursuant to the counselling of the petitioners conducted on 27.12.2011, could not be made. 6. Sh. Bhuvnesh Sharma, learned counsel representing the petitioners has strenuously contended that the petitioners being duly eligible as per the existing Recruitment and Promotion Rules, are entitled to be appointed as JBT Teachers and that the requirement to qualify the TET is not applicable to their case keeping in view such test being not yet prescribed under the Rules by amending the same suitably. In order to buttress the contentions that all appointments are required to be made in accordance with existing Recruitment and Promotion Rules, learned counsel has placed reliance on the judgment of the learned Single Judge in CWP No. 7602/2010, titled Om Parkash v. State of Himachal Pradesh & Ors. and its connected matters, dated 2.5.2012 and another judgment of learned Single Judge in CWP No. 7188/2010, titled Naresh Kumar & Ors. v. State of Himachal Pradesh & Anr., dated 19.8.2011. 7. On the other hand, learned Assistant Advocate General has forcefully contended that although no amendment prescribing the condition to pass TET is yet made in the existing Recruitment and Promotion Rules, yet contended on instructions from the District Attorney (Law Officer) present in the Court that the process to amend the Rules is likely to be completed very shortly in the next month i.e. July 2012 and the TET will also be conducted during the last week in that very month. It has further been contended that the petitioners were not legally entitled to seek appointment contrary to the provisions under the RTE Act as well as the Rules framed thereunder, which has already been made applicable to the State of Himachal Pradesh. 8. I have carefully analysed the rival submissions and also gone through the entire record as well as the relevant provisions in the existing Recruitment and Promotion Rules and also under the RTE Act and the Rules framed thereunder. 9. 8. I have carefully analysed the rival submissions and also gone through the entire record as well as the relevant provisions in the existing Recruitment and Promotion Rules and also under the RTE Act and the Rules framed thereunder. 9. It is seen that on facts there is not much controversy because it is the claim of the petitioners that in view of the TET is not yet prescribed as an essential qualification under the existing Recruitment and Promotion Rules and they being eligible under the Rules should have been appointed as JBT Teachers pursuant to their interviews conducted on 27.12.2011. The case of the respondents-State, however, is that in view of there being mandatory provisions prescribing TET an essential qualification for appointment as a teacher under RTE Act and the Rules framed thereunder, the petitioners cannot claim appointment merely on the basis of two years TTC Course, they had undergone. Therefore, before entering into the controversy on merits, it is desirable to make a reference to the provisions relevant for the purpose of decision of this case in the existing Recruitment and Promotion Rules for filling-up the post of Junior Basic Trained Teacher (Annexure PR-1 to the rejoinder), which reads as under:- "7. Minimum education and other qualification required for direct recruits. (a) ESSENTIAL (i) Should be 10+2 with 50% marks from a recognised Board of School Education/University. (ii) Should possess two years JBT certificate course from an Institution duly recognized by the Central/State Govt. (b) DESIRABLE QUALIFICATION: Knowledge of customs, manner, and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh. & rdquo; 10. It is seen from the Rules ibid that a person eligible for being considered to the post in question should be 10+2 with 50% marks from a recognised Board of School Education/University and should also possess two years JBT certificate course from an Institution duly recognised by the Central/State Government. The petitioners possess the qualification i.e. two years TTC Course and not JBT Course. There is no provision under the Rules that a candidate possessing two years TTC Course is also eligible for being appointed as a JBT Teacher. The petitioners possess the qualification i.e. two years TTC Course and not JBT Course. There is no provision under the Rules that a candidate possessing two years TTC Course is also eligible for being appointed as a JBT Teacher. The petitioners no doubt have completed this Course on being sponsored for the purpose by the 2nd respondent and may be in view of the qualification so prescribed under the RTE Act as well as the Rules framed thereunder. The provisions contained under Section 23 of the Act ibid reads as under:- 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 (I) 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 (i), 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 teachers shall be such as may be prescribed." 11. Now if coming to Notification No.F.No.61-03/20/2010/NCTE/(N&S) dated 23.8.2010, issued by the National Council for Teacher Education, an Academic Authority within the meaning of Section 23 (1) of the RTE Act, the same lays down the minimum qualification for appointment as teacher in Classes I to VIII in a school as in clause (n) of Section 2 of the RTE Act from the date of Notification i.e. 23.8.2010. Since we are concerned with the appointment of a JBT teacher who teaches Classes I to V, the minimum qualification for appointment of such teacher under the Notification is prescribed as under:- "Minimum Qualifications: Classes I-V Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Elementary Education (by whatever name known) OR Senior Secondary (or its equivalent) with at least 45% marks and 2-year 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.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." 12. Not only this, but the guidelines laid down for conducting TET under the RTE Act framed by the National Council for Teacher Education, a statutory body of Govt. of India, have also been circulated vide Circular No. 76-4/2010/NCTE/Acad. A31226, dated 14.2.2011 to the Principal Secretary (Education) to the Govt. of Himachal Pradesh. The background and rationale behind prescribing such test to be qualified by a candidate for the post of teacher has been discussed in Clauses 1 to 5 thereunder which reads as under:- "Guidelines for conducting Teacher Eligibility Test (TET) Background and Rationale The implementation of the Right of Children to Free and Compulsory Education (RTE) Act, 2009 requires the recruitment of a large number of teachers across the country in a time bound manner. Inspire of the enormity of the task, it is desirable to ensure that quality requirement for recruitment of teachers are not diluted at any cost. It is therefore necessary to ensure that persons recruited as teachers possess the essential aptitude and ability to meet the challenges of teaching at the primary and upper primary level. 2. In accordance with the provisions of sub-section (1) of section 23 of the Right of Children to Free and Compulsory Education (RTE) Act, 2009, the Nation Council for Teacher Education (NCTE) has laid down the minimum qualifications for a person to be eligible for appointment as a teacher in class I to VIII, vide its Notification dated August 23, 2010. In accordance with the provisions of sub-section (1) of section 23 of the Right of Children to Free and Compulsory Education (RTE) Act, 2009, the Nation Council for Teacher Education (NCTE) has laid down the minimum qualifications for a person to be eligible for appointment as a teacher in class I to VIII, vide its Notification dated August 23, 2010. A copy of the notifications attached at Annexure 1. One of the essential qualifications for a person to be eligible for appointment as a teacher in any of the schools referred to in clause (n) of section 2 of the RTE Act is that he/she should pass the Teacher Eligibility Test (TET) which will be conducted by the appropriate Government. 3. The rationale for including the TET as a minimum qualification for a person to be eligible for appointment as teacher is as under; i. it would bring national standards and benchmark of teacher quality in the recruitment process; ii it would induce teacher education institutions and students from these institutions to further improve their performance standards; iii it would spend a positive signal to all stakeholders that the Government lays special emphasis on teacher quality. 4. The TET examination may be conducted by a suitable professional body designated by the appropriate Government for the purpose. It will be conducted in accordance with the Guidelines hereunder. Eligibility 5. The following persons shall be eligible for appearing in the TET: i. A person who has acquired the academic and professional qualifications specified in the NCTE Notification dated 23rd August 2010. ii. A person who is pursuing any of the teacher education courses (recognized by the NCTE or the RCI, as the case may be) specified in the NCTE Notification dated 23rd August 2010. iii. The eligibility condition for appearing in TET may be relaxed in respect of a State/UT which has been granted relaxation under sub-section (2) of section 23 of the RTE Act. The relaxation will be specified in the Notification issued by the Central Government under that sub-section." 13. It is seen from the provisions ibid that providing of TET as a minimum qualification for a person to be eligible for appointment as a teacher is to bring national standards and benchmark of teachers quality so that the standard of education can be further improved. It is seen from the provisions ibid that providing of TET as a minimum qualification for a person to be eligible for appointment as a teacher is to bring national standards and benchmark of teachers quality so that the standard of education can be further improved. Thus, there is a noble purpose behind prescribing TET as minimum qualification for appointment as a teacher. The RTE Act extends to whole of India except the State of Jammu & Kashmir and it has already come into force. Even the Rules notified vide Notification dated 23.8.2010 referred to herein above, have also been made applicable with effect from the date of Notification i.e. 23.8.2010. In such a situation, in case the respondents have failed to amend the existing Rules appropriately prescribing TET as one of the essential qualifications for appointment as JBT Teacher and to the contrary petitioners have been asked to furnish their bio data and also to appear in counselling on 27.12.2011 vide Annexure P-16, they cannot be allowed to take benefit of such a situation and claim appointment as a matter of right against the posts of JBT Teachers particularly when the RTE Act as well as the Rules framed thereunder providing for TET as an essential qualification for appointment as such had already come into being on the day of their counselling and as regards exemption from qualifying such test (TET) by the petitioners sought by the respondents from the Central Government was declined. 14. Although the petitioners have not specifically raised the plea of estoppel, yet the case that firstly they were sponsored to undergo Trained Teacher Certificate Course and subsequently were asked to furnish their bio data and also to appear for counselling for the post in question reveal that impliedly they have pressed into service the plea of estoppel against the respondents. 15. The plea so raised by the petitioners is not legally sustainable because inadvertently or owing to some other reasons, the petitioners who were simply asked to furnish their bio-data and also to appear in the counselling cannot claim appointment as a matter of right in view of the TET is prescribed as an essential qualification for appointment as JBT Teacher under the RTE Act and the Rules framed thereunder. The RTE Act is a statute and as per the settled legal principles, no plea of estoppel can be raised against any provisions contained under the statute. In Rishabh Kumar & sons v. State of U.P. & Others, AIR 1987 SC 1576 , the Honble Apex Court has held as under:- "2. Having heard learned counsel for the appellant, we are satisfied that the view taken by the Full Bench decision is correct. We are equally satisfied that the representations either of the State Government or of the authorities under the Statute would not give rise to a situation of estoppel against the statute. The law is clear and there are several decisions of this court which make the position abundantly certain that the estoppel is not available to be pleaded against an Act." 16. To the similar effect is the ratio of the law on the subject laid down again by the Honble Supreme Court in Dr. Ashok Kumar Maheshwari v. State of U.P. & Another, (1998) 2 SCC 502 , which reads as follows:- "20. The basic principle is that the plea of estoppel cannot be raised to defeat the provisions of a statute. (See : G.H.C. Ariff v. Jadunath Majumdar Bahadur, AIR 1931 PC 79; Mathra Parshad & Sons v. State of Punjab, AIR 1962 SC 745 ; Rishabh Kumar v. State of U.P., AIR 1987 SC 1576 : 1987 (Supp) SCC 306. 21. This principle was reiterated in Union of India v. R. C. D'Souza, AIR 1987 SC 1172 : (1987) 2 SCC 211 , where a retired army officer was recruited as Assistant Commandant on temporary basis and was called upon to exercise his option for regularisation contrary to the statutory rules. It was held that it would not amount to estoppel against the Department. 22. Whether a Promissory Estoppel, which is based on a "promise" contrary to law can be invoked has already been considered by this Court in Kasinka Trading v. Union of India, (1995) 1 SCC 274 : 1995 AIR SCW 680 as also in Shabi Construction Co. It was held that it would not amount to estoppel against the Department. 22. Whether a Promissory Estoppel, which is based on a "promise" contrary to law can be invoked has already been considered by this Court in Kasinka Trading v. Union of India, (1995) 1 SCC 274 : 1995 AIR SCW 680 as also in Shabi Construction Co. Ltd. v. City & Industrial Development Corporation, (1995) 4 SCC 301 wherein it is laid down that the Rule of "promissory estoppel" cannot be invoked for the enforcement of a "promise" or a "declaration" which is contrary to law or outside the authority or power of the Government or the person making that promise." 17. No doubt, vide communication dated 26.3.2012 (Annexure R-1) to the reply filed on behalf of the respondents, it is observed as under:- "3. It is also observed that while the NCTE Notification, laying down the minimum teacher qualifications in pursuance of section 23 (1) of the RTE Act, was issued on 23rd august, 2010 and immediately thereafter circulated to the States, the State Government of Himachal Pradesh has, even after more than one and half year of the said Notification, not modified/amended its recruitment Rules." However, the fact remains that the Rules have not been amended appropriately so far. The process to amend the same will be completed during the next month i.e. July 2012. The TET of all eligible candidates will also be conducted during the last week of next month as stated by learned Assistant Advocate General, on instructions from the District Attorney (Law Officer), who was present in the Court. Keeping in mind a very noble purpose, i.e. to improve the standard of education and bring national standards and benchmark of teachers quality behind prescribing TET an essential qualification for appointment as teacher under the guidelines quoted herein above, this Court is of the considered opinion that the petitioners can wait for another one month and sit in the TET along with other eligible candidates being conducted in the month of July 2012. 18. In a peculiar situation as discussed herein above coupled with the factum that the Central Govt. 18. In a peculiar situation as discussed herein above coupled with the factum that the Central Govt. has declined the request made by the respondents for relaxing the condition of passing TET in the case of the petitioners and rather advised the State Government to incorporate suitable amendment in this behalf in the Recruitment and Promotion Rules and to make appointment of the teachers thereafter strictly from amongst the candidates who have passed the TET with minimum prescribed standard, i.e. 50% or more marks, neither the petitioners are entitled to claim appointment as JBT teachers under the existing Rules at this stage, nor can it be said that the action on the part of the respondents in not extending offer of appointment to them, is illegal or arbitrary. 19. The law laid down by learned Single Judge of this Court in Om Parkashs case and Naresh Kumars case cited supra is distinguishable on law as well as facts because in those cases the proposition was that in view of the change in Govt. Policy/Rules to make recruitment on contract basis, the petitioners can seek appointment on regular basis. It is in this backdrop, it was held that the appointment to a post is required to be made as per the Recruitment and Promotion Rules. No such situation is, however, there in the present case, where the Central Act has already come into force and the Rules providing essential qualification for the post of JBT teacher have not only been framed thereunder, but made applicable also from 23.8.2010, was there in the cases decided by the learned Single Judge. Thus, the case law so cited on behalf of the petitioners is of no help to them being not attracted in this case. 20. Reliance on behalf of the petitioners has also been placed on the judgments of the Honble Apex Court in A. K. Bhatnagar & Ors. v. Union of India & Ors., (1991) 1 SCC 544 and Dr. Rajinder Singh v. State of Punjab & Ors., (2001) 5 SCC 482 . The ratio of the law laid down in these judgments is that the promotion to a post can only be made in accordance with Service Rules applicable to a post and not otherwise. There cannot be any quarrel to such a well settled legal proposition. Rajinder Singh v. State of Punjab & Ors., (2001) 5 SCC 482 . The ratio of the law laid down in these judgments is that the promotion to a post can only be made in accordance with Service Rules applicable to a post and not otherwise. There cannot be any quarrel to such a well settled legal proposition. However, in the peculiar facts and circumstances of this case discussed herein above coupled with the factum of the petitioners are not yet appointed as JBT teachers, the same is not attracted in the present case. 21. In view of the appraisal of the given facts and circumstances as well as the legal provisions discussed herein above, I find no merit in the present writ petition and the same is accordingly dismissed, so also the pending applications, if any.