Research › Search › Judgment

Uttarakhand High Court · body

2014 DIGILAW 281 (UTT)

Praveen Kumari v. State of Uttarakhand

2014-07-15

SUDHANSHU DHULIA

body2014
JUDGMENT Sudhanshu Dhulia, J. 1. The petitioners before this Court underwent a training known as “Basic Teachers Certificate” (hereinafter referred to as “BTC”), which is inter alia a necessary qualification for appointment to the post of teacher in Elementary School. 2. What is under challenged by the petitioners is a Government Order dated 04.03.2014 whereby the Government has exempted the mandatory qualification known as “Teacher Eligibility Test” (hereinafter referred to as “TET”) for a different set of B.T.C. qualified candidates. 3. In short, before this Court, there are two sets of B.T.C. trained teachers (a) the petitioners and (b) the private respondents/interveners. The difference between them is that the present petitioners have passed an open competition and than become eligible for admission to the B.T.C. course, which would then enable them to clear the mandatory qualification of T.E.T. The private respondents are the ones who did not compete for any examination for undergoing this course, but this was a benefit granted to them by the Government for their past services as “Shiksha Mitra” as they were imparting education in primary school children in remote areas of the State. They have, however, been exempted from T.E.T. 4. At this juncture, it must be noted here that the writ petition (WPSS No. 674 of 2009) in which petitioners had challenged the selection of the present respondents to undergo the said test i.e. B.T.C. as arbitrary and violative of Article 14 of the Constitution of India, but the writ petition was dismissed. 5. This Court has to examine as to whether the exemption from T.E.T. has been rightly granted or not. A brief background of the present case, therefore, be in order. 6. After the Right to Education Act being inserting in the Constitution of India and become Fundamental Right under Article 21 (A) of the Constitution of India, a detailed Legislation was passed by the Parliament known as “Right of Children to Free Compulsory Education Act, 2009” (hereinafter referred to as “Education Act”). There were various provisions of the Act, but the focus of the Parliament was that Elementary Education i.e. education from Class I to Class VIII should not only be compulsory but also a Fundamental Right of a child and that such education should be a meaningful education. Meaning thereby, the teacher who impart such education must be properly educated and trained. 7. Meaning thereby, the teacher who impart such education must be properly educated and trained. 7. Rule 23 of the Education Act authorizes the Central Government to notify an academic authority for the purpose of, inter alia, laying down the eligibility of such teachers. The qualification and the training are necessary for the teachers who impart such Elementary education. Consequently, a notification came, by which the National Council for Teachers Education (in short “NCTE”) to prescribed mandatory qualifications for Elementary School teachers in the country. This was the notification dated 23.08.2010, inter alia, a person must have a “training” to teach Elementary School children. In the State of Uttarakhand such training is known as Basic Training Certificate (in short “B.T.C.”), which is a two years course undertaken by Education Authorities. Apart from this a trained teacher (it is now BTC teacher) must qualify TET examination only than he would become qualify for appointment of teacher in Elementary school. 8. The Government vide notification dated 04.03.2014 has exempted this qualification i.e. TET for the second set of teachers which are respondents/interveners before this Court. In order to clarify it and the cost of the repetition it must be stated that the second set of teachers, which are referred here, are the teachers who were earlier working as a Shiksha Mitra and given a concession and underwent a B.T.C. course and it is in their case that this exemption has been granted. It is this exemption which is presently being challenged by the first set of teachers who have competed their course i.e. B.T.C. and thereafter as this course has not been exempted in their case, they are alleging violation of Article 14 of the Constitution of India, amongst other Articles. 9. Though the prayer in most of these writ petitions have not been very happily drafted, in the first set of teachers i.e. the petitioners seek the same benefit i.e. exemption of TET which is given to the respondents in their cases as well. What is presently being seen by this Court as to whether exemption, which has been granted to the respondents, is a valid exemption or not, because the fate of the petitioners would depend upon this exemption and the findings therein. 10. What is presently being seen by this Court as to whether exemption, which has been granted to the respondents, is a valid exemption or not, because the fate of the petitioners would depend upon this exemption and the findings therein. 10. If the entire scheme of the Right to Education Act and the subsequent notification issued by the NCTE dated 23.08.2010 are examined in detail, it has nowhere been the intention either of the Parliament or the Authorities constituted therein, including NCTE to dispense with the TET qualifications which is mandatory in every given case. In fact on an earlier round of litigation there was a principle challenge to this examination i.e. TET, which was rejected by this Court in Bhuwan Chandra & Others vs. State of Uttarakhand & Others (decide on 13.12.2012). 11. Thereafter in the earlier round of litigation (in WPSS No. 1506 of 2012 decided on 13.12.2012), the second set of teachers, who are presently before this Court are respondents had challenged the order dated 14.06.2011 whereby such an exemption (i.e. exemption for appearing in TET) was granted to such teachers who have done their BTC through open competition. In the said writ petition, this Court rejected the claim of the petitioners and held as under:- “This Court is also of the view that the Government should not have passed the order dated 29.8.2012 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 29.8.2012 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 29.8.2012 to a set of BTC trained teachers.” 12. Now the exemption which was earlier granted to the petitioners earlier was held to be wrong by this Court is now being granted to the second set of teachers, which is again under challenge before this Court. 13. Mr. Subash Upadhyay, learned Chief Standing Counsel for the State as well as Mr. K.P. Upadhyay, learned counsel is appearing for the second set of teachers/respondents rely upon condition Nos. 4 and 5 of the notification dated 23.08.2010, which reads as under:- “4. 13. Mr. Subash Upadhyay, learned Chief Standing Counsel for the State as well as Mr. K.P. Upadhyay, learned counsel is appearing for the second set of teachers/respondents rely upon condition Nos. 4 and 5 of the notification dated 23.08.2010, which reads as under:- “4. Teacher appointed before the date of this Notification:- The following categories of teachers appointed for classes I to VIII prior to date of this Notification need not acquire the minimum qualifications 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 Qualifications 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 I to V possessing B.Ed. qualification, or a teacher possessing B.Ed. (Special Education) or D.Ed. (Special Education) qualification shall undergo an NCTE recognized 6 – month special programme on elementary education. (b) A teacher of class I to V with B.Ed. qualification who has completed a 6-month 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 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).” 14. A bare perusal of the aforesaid notification it reveals that by the notification referred above concession has been given to the respondents that the mandatory condition of TET which was referred in the preceding paragraphs of the notification are not exempted. What is only exempted is B.T.C. when the State Government placed before the Central Government its difficulty that there is not enough courses of BTC available in the State. Therefore, for a limited period exemption for undergoing such courses may be granted. The above provisions do not contemplate an exemption from appearing or qualify TET. That simply does not exist. 15. Therefore, for a limited period exemption for undergoing such courses may be granted. The above provisions do not contemplate an exemption from appearing or qualify TET. That simply does not exist. 15. Even if it is presumed for the sake of argument that TET is not a requirement in cases where the process for initiation of appointment of elementary school teachers has been made, even then this exemption cannot be granted to the petitioners. Merely because the process for admission to BTC examination had been initiated would not mean that the process for appointment of teachers had already been initiated. The two are different. Moreover, a ‘Shiksha Mitra’ cannot be said to be in service. He is simply working as a part time arrangement on an honorarium. 16. That being so, this Court wholly fails to understand as to why before granting of exemption on 04.03.2014, the State Government seek clarification from the NCTE that there are certain set of teachers whom they called as Shiksha Mitra who are already in service as teacher. Therefore, they should be granted such exemption. 17. The very question put by the State Government to NCTE was a wrong question. Shiksha Mitra cannot be treated in service as a teacher. They were never teachers anywhere. They were never paid any salary, which was being paid to them, was honorarium. In fact in the very initial scheme by which Shiksha Mitra was appointed which is an order dated 27.01.2010 passed by the Government of Uttarakhand, which is placed on record as annexure “X”. The Government has stated that Shiksha Mitra scheme is only for a short-term arrangement and such persons who are appointed as Shiksha Mitra cannot be said that they will be regularized as teachers. 18. That being the scheme of things, the exemption which is being sought to be given by the correspondence of letters between the State authorities and the NCTE authorities is totally wrong and in violation of law. It must be clearly stated that it is not given to the State Government to give such exemptions. 19. 18. That being the scheme of things, the exemption which is being sought to be given by the correspondence of letters between the State authorities and the NCTE authorities is totally wrong and in violation of law. It must be clearly stated that it is not given to the State Government to give such exemptions. 19. As already referred above such exemption can only be given on two contingency (a) where the State Government for some reasons is not able to give the minimum qualification of BTC and secondly such exemption can be granted if a process of appointment of teachers had already been taken prior to notification dated 23.08.2010. A process for appointment of teachers did not proceed prior to 23.08.2010. Therefore, under no stretch of evidence no exemption can be granted. An exemption can only be given by the Central Government vide a notification. This cannot be given by correspondence of letters from one authority to another as has been done in the present case. Therefore, the exemption is wrong. The writ petitions are succeed. The order dated 04.03.2014 by which the exemption was granted to the respondents, is hereby quashed. 20. Having said this, it is made clear that respondents who are presently working as Shiksha Mitra shall continue to work as Shiksha Mitra, and will be given a chance to qualify the TET and if they qualify only then they shall be considered for permanent appointment as teacher. This Court has also been informed that since its inception TET examination is not being held by the State Government even once in a year. TET examination preferably must be held at least twice a year. 21. In view thereof, it is hereby directed to the State Government that for the next year, at least, they shall hold TET examination at least once in every six months, as this itself would solve the problem of unfilled vacancies to some extent. 22. The Registrar General of this Court is directed to inform about this order to the Director, Elementary Education, Government of Uttarakhand for onwards compliance.