Research › Search › Judgment

Uttarakhand High Court · body

2012 DIGILAW 758 (UTT)

BHUWAN CHANDRA v. STATE OF UTTARAKHAND

2012-12-13

SUDHANSHU DHULIA

body2012
JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) 1. In all the above bunch of writ petitions what is under challenge is the recruitment process for selection and appointment of primary school teachers in the State of Uttarakhand where the issue is whether the qualification of Teachers Eligibility Test (hereinafter referred to as “TET”) is mandatory or can be exempted by the State Government in a certain contingency and consequently if the same can be exempted to a particular group of persons whether the same exemption is also liable to be given to the petitioners as well. In all the above writ petitions (barring WPSS No. 1528 of 2012), the petitioners are Basic Teacher Certificate (hereinafter referred to as “BTC”) qualified candidates. However, they have done the BTC training and the qualification under a special category inasmuch as all the petitioners prior to getting the said training were employed as “Shiksha Mitras” and in that capacity were teaching in primary schools in the State of Uttarakhand. However, since in order to become primary school teacher BTC training was mandatory, all such “Shiksha Mitras” have been granted this training (by virtue of their being “Siksha Mitra”), and the petitioners fall under that category. They are aggrieved by Government orders dated 14.6.2011 and 29.8.2012 by which the State Government has exempted BTC trained candidates, other than the present petitioners, from appearing in TET for the reasons that they had qualified as a candidate for BTC training through an open competition. The petitioners allege that the present petitioners as well as the group of BTC trained candidates (who have been exempted by orders dated 14.6.2011 and 29.8.20 12 to appear in TET, and have subsequently been impleaded as party and have been heard through their counsel Mr. Sandeep Tiwari) have done their BTC training and training, its period and the and the quality as well as the syllabus under which training was given to the petitioners and the respondents were exactly the same. There was absolutely no difference between the training given to the petitioners and the respondents and therefore the classification made by the State Authorities exempting a particular class of BTC trained candidates from appearing in TET is arbitrary and in violation of article 14 of the Constitution of India. There was absolutely no difference between the training given to the petitioners and the respondents and therefore the classification made by the State Authorities exempting a particular class of BTC trained candidates from appearing in TET is arbitrary and in violation of article 14 of the Constitution of India. Moreover, taking this argument further the learned counsels have argued that there is no intelligible differentia here and that it has no nexus with the object sought to be achieved. The petitioners have thus claimed the same benefit i.e. exemption to appear in TET! 2. The writ petitioners in Writ Petition (S/S) no. 1528 of 2012 are B.Ed. qualified candidates who have also qualified the TET are aggrieved by the above two orders dated 14.6.2011 and 29.8.20 12 inasmuch as the two orders have exempted a BTC trained candidate from appearing in TET. This they submit is arbitrary and violative of Article 14 of the Constitution of India, inasmuch as TET being a mandatory qualification no exemption is liable to be granted to any category of persons. 3. After the Right to Education was included as a fundamental right in Part III of the Constitution of India as Article 21-A, Parliament enacted a legislation known as Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the “Act”). Consequently under the Act the authorized agency i.e. National Council for Teacher Education (hereinafter referred to as the “NCTE”) has framed regulations on 23.8.20 10 by which certain qualifications were laid down for an elementary school teacher. These qualifications, inter alia, were that they should be senior secondary plus teacher training certificate and he should have also qualified a test known as TET. 4. In a bunch of writ petitions before this Court the petitioners had earlier challenged the propriety and the legality of imposing such a condition i.e. TET and this Court while rejecting the contention of the petitioners had held that the condition has been imposed by the State in public interest where the primary purpose is that the children upto the age of 14 must get free and compulsory elementary education – an education which should not be a mere formality but it should be a meaningful education and necessary condition of which would be that the teaching must be imparted by qualified teachers. This being so, all questions and doubts regarding imposition of this condition i.e. TET was rejected by this Court. The writ petitions to that extent were also dismissed. (See Baldev Singh and others Vs. State of Uttarakhand and others reported in 2011 (2) UD 575) 5. Now, all this Court has to see as to whether the State Government was correct in passing orders dated 14.6.2011 and 29.8.20 12 whereby a particular category of BTC trained candidates have been exempted from appearing in TET and subsequently if such an exemption can validly be given under the law should the same benefit be not given to the present petitioners who are also BTC trained candidates. This is the precise question for determination. 6. Under Section 23 of the Right of Children to Free Compulsory Education Act, 2009 (hereinafter referred to as the “Act”) the minimum qualifications are to be laid down by an authority authorized by Central Government. Consequently the academic authority which was constituted for the said purpose is the NCTE and the said authority in turn issued a notification on 23.8.2010, inter alia, giving qualifications for appointment of teachers in an elementary school which would include teachers in a primary school. The minimum qualifications read as under: - “1. Minimum Qualifications : (i) 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 years Bachelor Elementary Education (B.El.Ed.) OR Senior Secondary (or its equivalent) with at least 50% marks and 2 years 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.” 7. A bare reading of the aforesaid qualifications would show that minimum qualifications for primary school teacher are now Class 12 from a recognized Board plus a teachers training certificate, which in the State of Uttarakhand is known as BTC. This being the minimum qualification a candidate has now to qualify a test which is known as TET. A bare reading of the aforesaid qualifications would show that minimum qualifications for primary school teacher are now Class 12 from a recognized Board plus a teachers training certificate, which in the State of Uttarakhand is known as BTC. This being the minimum qualification a candidate has now to qualify a test which is known as TET. Once he qualifies the TET then he becomes eligible for appointment as a primary school teacher. In other words, whereas Class 12 and a teaching certificate such as BTC are the minimum eligibility qualifications, in addition to this a candidate also has to clear an examination known as TET. This is a mandatory qualification. The only exemption as per notification dated 23.8.2010 is contained in its para 5 which reads as under: - “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 appointments may be made in accordance with the NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 (as amended from time to time.)” 8. In other words, where prior to the date of notification i.e. 23.8.20 10 the Government had initiated “the process of appointment of teachers”, in such cases the qualification of primary school teachers would not be as contained in the notification dated 23.8.2010 but would be as contained in regulation of NCTE of 2001. The only difference between 23.8.20 10 regulation/notification and 2001 regulation on this aspect is that in regulation 2001 there is no requirement for a candidate to pass TET! In any case this is the only difference which is relevant for our purposes. In other words, in case where the initiation of process of appointment of teachers had already started prior to 23.8.20 10 the Government would not insist on such a candidate to qualify TET. In this context it has to be examined as to whether the exemption granted by the Government by order dated 14.6.2011 and 29.8.20 12 is a valid exemption! As before this Court answers the question of parity the necessity of TET must be examined and in what cases could an exemption be granted. 9. In this context it has to be examined as to whether the exemption granted by the Government by order dated 14.6.2011 and 29.8.20 12 is a valid exemption! As before this Court answers the question of parity the necessity of TET must be examined and in what cases could an exemption be granted. 9. Having heard the counsels for the petitioners, the State Counsel and the counsels for the private respondents, this Court is of a considered view that exemption granted by the Government to the said BTC trained candidates is not a valid exemption and was not liable to be given to them in accordance with law inasmuch as under Para 5 of the notification dated 23.8.20 10 the Government could have given an exemption only in those cases where process for recruitment had already begun prior to 23.8.20 10. In the present case the exemption is not in accordance with clause 5 as “the process of appointment of teachers” had not started prior to 23.8.2010. 10. The exemption dated 14.6.2011 and the earlier correspondence which culminated in order 14.6.2011 has been perused. It only suggests that since the process for recruitment of BTC trained candidates was initiated by the Government as far back as in the year 2005 such an exemption has been granted to them. However, merely because the process for recruitment of BTC trained candidates were initiated by the Government in the year 2005, it would not ipso facto mean that process for recruitment of teachers had also been initiated. There is no statute, rules or regulation or even any government order, certainly none which has been shown to the Court which would suggest so. It is undoubtedly true that one of the necessary qualifications for appointment as an assistant teacher in a primary school is BTC training and hence BTC qualification is mandatory. But merely because a candidate has been selected for BTC Course it would not mean that he has become an assistant teacher in a primary school. This being the state of affairs, the logic derived by the State Government in giving exemption to BTC trained candidates is wholly erroneous. Since this Court is of a considered view that exemption to appear in TET was not liable to be given to a particular set of BTC trained candidates, this Court cannot grant such an exemption to the petitioners, as is being sought. 11. Since this Court is of a considered view that exemption to appear in TET was not liable to be given to a particular set of BTC trained candidates, this Court cannot grant such an exemption to the petitioners, as is being sought. 11. One of the arguments of the petitioners was that since they have been recruited as “Shiksha Mitras” they are even on better footing than the category of BTC trained candidates who have been granted exemption on the ground that the petitioners were already teaching in a primary school and therefore they are liable to be given exemption of minimum qualification which would include an exemption from appearing in TET, in view of Section 23 (2) of the Act. Section 23 of the Act reads as under: “23. Qualifications for appointment and terms and conditions of service of teachers. – (1) Any person possessing such minimum qualifications, as laid down by the 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, teachers shall be such as may be prescribed.” 12. First of all, under Section 23(2) of the Act the powers vest with the Central Government to relax the minimum qualification of elementary school teacher. In states where adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under Section (1) are not available in sufficient numbers. 13. It is for the State Government to pursue the matter with the Central Government under Section 23 of the Act and in that event the Central Government will take a decision under section 23(2) of the Act. 13. It is for the State Government to pursue the matter with the Central Government under Section 23 of the Act and in that event the Central Government will take a decision under section 23(2) of the Act. Moreover, what can be relaxed are the qualifications and the qualifications would be a minimum Senior Secondary and a teachers training certificate. Primarily what it means the relaxation of BTC certificate for the State of Uttarakhand. It does not contemplate relaxation from sitting in an examination called TET because for the reasons that TET is available and above minimum qualification which a candidate has to pass in order to become elementary school teacher. Moreover, as “Shisha Mitras” the petitioners were never appointed as primary school teachers inasmuch as they never had qualification to be appointed as primary school teacher, as one of the mandatory conditions which always existing for appointment of primary school teacher was a teachers training certificate which in the State of Uttarakhand was known as Basic Teacher Certificate. The Hon’ble Apex Court in the case of Rajesh Kumar Gupta and others v. State of U.P. and others (2005) 5 SCC 172 has already held imparting of Special BTC training to the “Shiksha Mitras” to be wrong and further held the Special BTC training to be contrary to the provisions of National Council for Teacher Education Act, and it was after this judgment the State machinery came into action and proceeded to impart regular BTC training to such candidates. In view of the above, the contention of the petitioners that they were already working as teacher in the State is not acceptable. Therefore the writ petitions (barring WPSS No. 1528 of 2012) are liable to be dismissed and are hereby dismissed. 14. When writ petition (S/S) No. 1507 of 2012 was being argued at the admission stage, it was brought to the notice of this Court that regarding one particular district i.e. district Champawat, pursuant to the exemption granted by the State Government recruitment has already been completed and selection as well as appointment has already been made in the case of district Champawat. Therefore, this Court had passed the following order in the said writ petition : “10. The present petitioners are similarly situated as the ones in whose favour aforesaid orders have been passed. Therefore, this Court had passed the following order in the said writ petition : “10. The present petitioners are similarly situated as the ones in whose favour aforesaid orders have been passed. The grievance of the present petitioners though relates to appointment of primary school teacher in district Champawat. A statement has come in this case regarding appointment of primary school teacher from the State Counsel that pursuant to the advertisement appointments of primary school teacher have already been made in district Champawat. In case this is so in the present case, it shall not presently affect appointment of such teachers by way of interim order passed in the present or any other writ petitions but their appointments shall be subject to the final determination of the writ petition.” 15. Now, since this Court has held that TET is a mandatory qualification, all such candidates who have gained selection and consequent appointment in district Champawat who do not have TET qualification will be made to appear in the next TET examination, and only if they qualify the said examination, they shall continue as teachers. Till they qualify the examination, their appointment shall be wholly temporary in nature and in the event that they fail to qualify the examination, the Government shall terminate their services. It is also made clear that such candidates who have been selected by virtue of having qualified TET in district Champawat, shall continue as teachers. 16. This Court is also of the view that the Government should not have passed the order dated 29.8.20 12 for the reason that even a day prior to it, the Government of Uttarakhand had framed Rules known as Uttarakhand Government Primary School Teacher Service Rules, 2012, where the Government had itself prescribed the mandatory conditions for appointment of primary school teacher which included a person to have qualified TET. Therefore, Orders 14.6.2011 and 29.8.20 12 are hereby quashed. Consequently the writ petition No. 1528 of 2012 succeeds as it questions the very exemption granted by the respondents on 14.6.2011 and 29.8.20 12 to a set of BTC trained teachers. 17. No order as to costs.