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Allahabad High Court · body

2015 DIGILAW 1992 (ALL)

SURESH KUMAR SONKAR v. STATE OF U. P.

2015-07-21

RAMESH SINHA

body2015
JUDGMENT Hon’ble Ramesh Sinha, J.—Heard Sri B.B. Paul, learned counsel for the revisionist and learned A.G.A. for the State. 2. The present criminal revision has been preferred against the judgment and order dated 3.7.2015, passed by Additional Sessions Judge, Court No. 1, Ballia, in Sessions Trial No. 91 of 2015, arising out of Case Crime No. 79 of 1996, State v. Santosh Prasad Dwivedi and others, under Sections 147, 302, 201, 120-B IPC, Police Station-Gadwar, District-Ballia. 3. The brief facts, which emerge from the record, are that the applicant being the then Station House Officer of the concerned police station was involved in case of custodial death alongwith other accused persons for which the First Information Report was lodged by one Virendra Singh against him as Case Crime No. 79 of 1996, under Sections 147, 302, 201, 120-B IPC, Police Station-Gadwar, District-Ballia and after investigation a charge-sheet has been submitted by C.B. C.I.D. (Crime Bureau, Crime Investigation Department) against the applicant and co-accused persons and cognizance has been taken against him and other accused persons on 17.3.2008 by the learned Magistrate. It further transpires that on 8.4.2015 the case was committed by the Chief Judicial Magistrate, Ballia to the Court of Sessions on 8.4.2015 and the Sessions Trial No. 91 of 2015 with respect to the three accused namely, Vijay, Jagdish and Kripa Shankar only and so far as the applicant is concerned and the co-accused Arvind Kumar Upadhyay and Mahesh Prasad are concerned, the case has not yet been committed to the Court of Sessions. 4. The co-accused Santosh Prasad Dwivedi filed a Criminal Revision No. 1333 of 2009, Santosh v. State of U.P., before this Court challenging the order dated 17.3.2008 passed by the learned Magistrate and the order dated 27.2.2009 passed by learned Magistrate issued a non bailable warrant in Case No. 537 of 2008 before this Court and the said revision was disposed of on 13.4.2009 with a direction to the revisionist to appear and move a discharge application, copy of the order dated 13.4.2009 has been annexed as Annexure 6 to this affidavit. 5. 5. The revisionist also filed an application under Section 482 Cr.P.C. No. 40348 of 2014, Suresh Kumar Sonkar v. State of U.P., for quashing the entire proceedings of case No. 537 of 2008 State v. Santsoh Dwivedi, arising out of Case Crime No. 79 of 1996, under Sections 147, 302, 201, 120-B IPC, Police Station-Gadwar, District-Ballia pending in the Court of Chief Judicial Magistrate, Ballia and which was disposed of by this Court on 19.9.2014 directing him also to move discharge application, a copy of which has been filed as Annexure 7 to this affidavit. 6. Thereafter co-accused Arvind Kumar Upadhyay alongwith another co-accused also filed an application under Section 482 Cr.P.C. No. 43655 of 2014, Arvind Kumar Upadhyay v. State of U.P., in which the similar order for discharge application filed was also passed, vide order dated 15.10.2014, copy of which has been filed as Annexure 8 to this affidavit. 7. Subsequently, the revisionist alongwith two accused Arvind Kumar Upadhyay and Mahesh Prasad filed a discharge application before the Chief Judicial Magistrate, Ballia, which was rejected on the ground that none has appeared on behalf of the revisionist or the other co-accused to press the said discharge application, further non bailable warrants were issued against the applicant and other person, vide order dated 8.4.2015, a copy of the order dated 8.4.2015 passed by the Chief Judicial Magistrate, Ballia, has been annexed as Annexure 9 to this affidavit. 8. The revisionist, aggrieved by the said order filed a Criminal Revision No. 1309 of 2015, Suresh Kumar Sonkar v. State of U.P., which was dismissed by this Court vide order dated 18.4.2015 observing that “after the revisionist surrenders to the process of Court and the matter is committed to the Court of Sessions, it would be open to the revisionist to move the discharge application before the Court of Sessions, which shall be considered in accordance with law at the appropriate stage”, a copy of the order dated 18.4.2015 is annexed herewith and marked as Annexure 10 to the affidavit. 9. On 23.4.2015 the revisionist again moved a discharge application before the Chief Judicial Magistrate, Ballia, praying that the order dated 8.4.2015 be recalled. A copy of the said application has been annexed as Annexure 11 to the affidavit. It appears that the said application is pending. 10. 9. On 23.4.2015 the revisionist again moved a discharge application before the Chief Judicial Magistrate, Ballia, praying that the order dated 8.4.2015 be recalled. A copy of the said application has been annexed as Annexure 11 to the affidavit. It appears that the said application is pending. 10. The revisionist then filed a time extension application before this Court in Criminal Misc. Application No. 40348 of 2014 on the ground that he could not move discharge application in pursuance of the order dated 19.4.2014 passed by this Court hence, one month’s time has to allowed to him to move the same in pursuance of the said order, the said time extension application, which was marked as Criminal Misc. Time Extension Application No. 154867 of 2015, was allowed by this Court, vide order dated 18.5.2015 granting one month’s time to the revisionist to file discharge application in compliance of the order dated 19.9.2014, in pursuance of the said order, the revisionist filed a discharge application before the Sessions Judge, Ballia, in Sessions Trial No. 91 of 2015, State v. Santosh Dwivedi and others, which was rejected by the trial Court on 3.7.2015 on the ground that as the case of the revisionist has not yet been committed to the Court of Sessions, hence, the said discharge application was premature one. Hence, the present revision before this Court. 11. Learned counsel for the revisionist argued that the discharge application, which was filed by the revisionist in pursuance of the orders dated 19.9.2014 and 18.5.2015 extending time for a further period of one month, learned trial Court was under obligation to decide the same and had committed illegality and erred in rejecting the same on the ground that the case has yet not been committed to the Court of Sessions by the learned Magistrate, hence, it was premature one is illegal and should be set aside by this Court. In support of his argument he placed reliance on the judgment of the Apex Court in the case of Union of India v. Prafulla Kumar, 1979 (III) SCC 4 ; Keasl Krishnal v. Suraj Bhan, 1980 Suppl. In support of his argument he placed reliance on the judgment of the Apex Court in the case of Union of India v. Prafulla Kumar, 1979 (III) SCC 4 ; Keasl Krishnal v. Suraj Bhan, 1980 Suppl. SCC 499; Niranjan Singh v. Jitendra Bhim Raj, 1990 (IV) SCC 76 ; Dilawar Balu Kurani v. State of Maharashtra, 2002 (2) SCC 135 ; State of Tamil Nadu v. N. Suresh Rajan, 2014 (XI) SCC 709 and State of Madras v. A.Arun Kumar, 2015 (II) SCC 471 . 12. Per contra, learned AGA, on the other hand, has strongly refuted the argument of the learned counsel for the revisionist and argued that the revisionist has time and again approached this Court and further misused the process of law and move the discharge application, which was not maintainable before the Sessions Court, as his case was not yet committed to the Court of Sessions which is evident from the order dated 8.4.2015 passed by the Chief Judicial Magistrate as well as the impugned order dated 3.7.2015 passed by the Sessions Judge. He submitted that the orders, which were passed by this Court on 19.9.2014, was identical to that of order passed in the case of two co-accused persons in Criminal Revision No. 1333 of 2009 namely Santosh Prasad Dwivedi v. State of U.P. and whose case was also not committed to the Court of Sessions and it appears that it was also not pointed out to this Court that the case of the said accused and of the revisionist had not yet been committed to the Court of Sessions, therefore the order for discharge was passed by this Court. He submitted that the impugned order passed by the Sessons Judge is justified and legal and revision is liable to be dismissed by the Court. 13. Considered the submissions advance by the learned counsel for the parties and perused the record. 14. It is an admitted fact that the case of the revisionist has not yet been committed by the Court of Sessions by the learned Magistrate till date as is apparent from the order dated 8.4.2015 passed by the Chief Judicial Magistrate, Ballia whose discharge application was rejected alongwith other accused persons namely Arvind Kumar Upadhyay, Mahesh Kumar for non prosecution. It is an admitted fact that the case of the revisionist has not yet been committed by the Court of Sessions by the learned Magistrate till date as is apparent from the order dated 8.4.2015 passed by the Chief Judicial Magistrate, Ballia whose discharge application was rejected alongwith other accused persons namely Arvind Kumar Upadhyay, Mahesh Kumar for non prosecution. The said order of the learned Magistrate was challenged by the revisionist before this Court in Criminal Revision No. 1309 of 2015 which was dismissed by this Court with a observation that “after the revisionist surrenders to the process of Court below and the matter is committed to the Court of Sessions it would be open to the revisionist to move discharge application before the Court of Sessions which shall be considered in accordance with law at the appropriate stage”. The revisionist did not comply with the said order of this Court and he filed a time extension application in application Under Section 482 Cr.P.C. No. 40348 of 2014, Suresh Kumar Sonkar v. State of U.P., which was disposed of by this Court on 19.9.2014, directing him to move a discharge application praying for a month’s further time to file the same, which was allowed by this Court on 18.5.2015, on the time extension application of the revisionist. In pursuance of which, he filed discharge application before the trial Court in Sessions Trial No. 91 of 2015, State v. Santosh Dwivedi and other, the trial Court after perusing the record found that the case of the revisionist has not yet been committed to the Court of Sessions of the Magistrate and the said application being premature one has rejected the same and it was only the case of three co-accused namely, Vijay, Jagdish, Kripa Shankar, Santosh and Ravindra were already commited to the Sessions Court and separated the trial of the revisionist and other co-accused Arvind, Mahendra, Damodar and Uma Shanker. In my opinion, the order passed by the trial Court is fully justified and correct. In my opinion, the order passed by the trial Court is fully justified and correct. Moreover, the argument of the learned counsel for the revisionist that the trial Court was bound to consider the discharge application of the applicant, which can be filed at any stage, is not tenable, in view of the provisions caontained in Section 193 Cr.P.C. which reads as follows: “Section 193 : Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code”. The case laws cited by the learned counsel for the revisionist of the Apex Court is distinguishable on the facts and circumstances of the present case, as in those cases the case of the accused have been committed to the Court of Sessions and therefore the accused claim discharge. Here the stage of 227 Cr.P.C. has not yet reached, hence the Sessions Court cannot take cognizance of any offence under Section 193 Cr.P.C. 15. It further transpires that the conduct of the revisionist in approaching this Court time and again shows the misuse the process of law which has been adopted by him, is also painful and the Court desired to impose a heavy cost on him but taking into account his age which is stated to age about 70 years, the Court restrict itself from imposing cost on him and directs him to surrender before the Chief Judicial Magistrate, Ballia, within a period of three weeks from today and the learned Magistrate is further directed to commit his case to the Court of Sessions forthwith as soon as he surrenders. 16. Learned Magistrate is further directed to ensure the presence of all the co-accused persons in accordance with law as the case pertains to the year 1996 and twenty years have passed as they had not yet surrendered and their cases are also yet to be committed to the Court of Sessions. If the revisionist does not surrender before the Magistrate as directed above coercive action shall be taken against him by the Magistrate in accordance with law to ensure his presence. 17. If the revisionist does not surrender before the Magistrate as directed above coercive action shall be taken against him by the Magistrate in accordance with law to ensure his presence. 17. Thus the impugned order passed by Court below does not suffer from any illegality, infirmity or jurisdictional error requiring any interference by this Court. The revision lacks merit and is liable to be dismissed. 18. The revision lacks merits and is accordingly dismissed. 19. Copy of this order shall be sent to the District Judge, Ballia by the Registrar General of this Court for information and copy of the same to the trial Court and Chief Judicial Magistrate, Ballia. —————— [2015(9) ADJ 92 (DB)] ALLAHABAD HIGH COURT BEFORE : DR. DHANANJAYA YESHWANT CHANDRACHUD, C.J. AND YASHWANT VARMA, J. SANTOSH KUMAR ....Petitioner Versus STATE OF U.P. AND OTHERS ....Respondents (Civil Misc. Writ Petition No. 41783 of 2015, decided on 18th September, 2015) Right of Children to Free and Compulsory Education Act, 2009—Section 23(1)—Appointment—Assistant teacher—Not possessing the norms prescribed by NCTE issued under Section 23(1) of the Act and notification issued thereunder—Petitioner secured appointment as an Assistant Teacher, not fulfilling the requirement prescribed in terms of notification of NCTE dated 23 August 2010, as amended on 29 July 2011—Advertisement inviting application stipulated that a candidate should have obtained at least 50% marks in graduation together with a B.Ed. degree—Hence, petitioner would not be eligible to any relief—No substance in the constitutional challenge. [Paras 12 to 16] Result; Petition Dismissed. Counsel : Abhishek Srivastava for the Petitioner; C.S.C., Amit Shukla and Rashmi Tripathi for the Respondents. JUDGMENT Hon’ble Dr. Dhananjaya Yeshwant Chandrachud, C.J.—The petitioner completed his graduation from Rohilkhand University, Bareilly with 44.83% marks. The petitioner also has a BEd which he obtained in 2011 from Indira Gandhi National Open University. He appeared in the UPTET Examination in 2011 in which he obtained 116 out of 150 marks. The petitioner applied for the post of Assistant Teacher in pursuance of an advertisement dated 30 November 2011. On 6 February 2015, the petitioner was given an order of appointment by the Basic Education Officer, Pilibhit. On 23 June 2015, a notice to show-cause was issued to the petitioner by the fourth respondent. The petitioner applied for the post of Assistant Teacher in pursuance of an advertisement dated 30 November 2011. On 6 February 2015, the petitioner was given an order of appointment by the Basic Education Officer, Pilibhit. On 23 June 2015, a notice to show-cause was issued to the petitioner by the fourth respondent. The principal ground on which the notice to show-cause was issued was that the petitioner failed to fulfil the norms prescribed by the National Council for Teacher Education (NCTE) in a notification dated 23 August 2010 issued under Section 23(1) of the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) inasmuch as he had not completed his BA/BSc with at least 45% marks in terms of NCTE’s notification dated 29 July, 2011. The petitioner submitted a reply to the notice to show-cause on 29 June 2015. An order was passed on 30 June 2015 cancelling the appointment of the petitioner. That has given rise to the filing of a writ petition. By the writ proceedings, the petitioner seeks to challenge the constitutional validity of the requirement imposed by NCTE in Para 3 of its notification dated 23 August 2010 (as amended on 29 July 2011) under which a minimum of 45% marks in graduation is required. The prescription of this percentage is urged to be violative of Article 14 of the Constitution. The principal basis for this submission is founded on a judgment of a learned Single Judge of the Uttarakhand High Court dated 20 August 2011 in Baldev Singh v. State of Uttarakhand, Writ Petition No. 772 (SS) of 2011. 2. Section 23(1) of the RTE Act provides as follows: “23. (1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorized by the Central Government, by notification, shall be eligible for appointment as a teacher. 2. Section 23(1) of the RTE Act provides as follows: “23. (1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorized 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.” 3. On 31 March 2010, the Central Government notified NCTE as the academic authority which was authorized to prescribe the minimum qualifications for appointment as a teacher. Under the RTE Act, every child of the age of 6 to 14 years has been recognized to have a right to free and compulsory education in a neighbourhood school till the completion of elementary education. Elementary education has been defined in Section 2(f), to mean education from classes I to VII. 4. NCTE by its notification dated 23 August 2010 laid down the minimum qualifications for a person to be eligible for appointment as a teacher for classes I to VIII in a school referred to in Section 2(n) of the RTE Act. Elementary education has been defined in Section 2(f), to mean education from classes I to VII. 4. NCTE by its notification dated 23 August 2010 laid down the minimum qualifications for a person to be eligible for appointment as a teacher for classes I to VIII in a school referred to in Section 2(n) of the RTE Act. The minimum qualifications for teaching students of classes I to V and classes VI to VIII were specified in Para 1 of the notification, which reads as follows: “1 Minimum Qualifications.— (i) Classes I-V (a) 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.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. (ii) 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.) OR B.A./B.Sc. with at least 45% 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 in 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.” 5. Hence, for teaching students of classes I to V, NCTE has prescribed three requirements: (i) A senior secondary certificate with a stipulated percentage of marks; (ii) A diploma in elementary education; and (iii) A pass in the teacher eligibility test (TET). Hence, for teaching students of classes I to V, NCTE has prescribed three requirements: (i) A senior secondary certificate with a stipulated percentage of marks; (ii) A diploma in elementary education; and (iii) A pass in the teacher eligibility test (TET). Para 3 of the notification provides 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 recognised 6-month special programme in Elementary Education. (b) with D.Ed. (Special Education) or B.Ed. (Special Education) qualification shall undergo, after appointment, an NCTE recognised 6-month special programme in Elementary Education.” 6. By Para 3(a), it has been stipulated that a person with a BA/BSc with at least 50% marks and a BEd qualification shall also be eligible for appointment as a teacher for classes I to V upto 1 January 2012, subject to undergoing an NCTE recognized six month course in elementary education after appointment. The requirement of a minimum percentage of marks at the BA/BSc examination was amended by a further notification of NCTE dated 29 July 2011 which provides as follows: “(i) Training to be undergone.—A person— (a) with Graduation with at least 50% marks and B.Ed. qualification or with at least 45% 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, shall also be eligible for appointment to Class I to V up to 1st January, 2012, provided he/she undergoes, after appointment, an NCTE recognized 6-month 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-month Special Programme in Elementary Education.” 7. Admittedly, the petitioner does not fulfil even the amended requirement of 45% marks at graduation. 8. The submission of the petitioner is that NCTE has no statutory power to lay down the minimum qualifying marks for BA/BSc at 50% (subsequently modified to 45%) on the ground that this would lie within the authority of the Union Government under the provisions of Section 23(2) of the RTE Act. 8. The submission of the petitioner is that NCTE has no statutory power to lay down the minimum qualifying marks for BA/BSc at 50% (subsequently modified to 45%) on the ground that this would lie within the authority of the Union Government under the provisions of Section 23(2) of the RTE Act. The second submission which has been urged, is that a person who has passed the BEd examination after having secured admission to the course in accordance with the applicable Regulations, cannot be excluded from applying as a primary teacher for classes I to V on the ground that he or she does not possess the minimum stipulated percentage of marks in the BA/BSc and this would be violative of Article 14 of the Constitution. In this regard, reliance has been placed on the judgment of a learned Single Judge of the Uttarakhand High Court in Baldev Singh (supra) in which it was held that NCTE has acted arbitrarily in imposing such a requirement since there would be no intelligible differentia between a candidate who has less than 50% marks and one who has more than 50% marks at graduation. Thirdly, it has been submitted that once NCTE had prescribed the minimum qualification of a senior secondary certificate, its statutory function had ended and there was no occasion for it to prescribe a minimum requirement of graduation with a stipulated percentage of marks. 9. The first submission proceeds on a misconception of the provisions of Section 23 of the RTE Act. Under sub-section (1), the minimum qualifications so as to enable a person to be eligible for appointment as a teacher have to be laid down by an academic authority authorized by the Central Government. NCTE is that authority. Hence, while stipulating the minimum qualifications, it is open to NCTE to prescribe that a candidate should hold the qualifications which it requires with a certain stipulated percentage of marks. The statutory powers of an expert body cannot be restricted by imposing artificial limitations not contemplated by the statute. The purpose of ensuring minimum qualifications and of vesting the power to prescribe them in an expert body authorized by the Central Government is to ensure the provision of education of a certain quality to young students who pursue elementary education. The statutory powers of an expert body cannot be restricted by imposing artificial limitations not contemplated by the statute. The purpose of ensuring minimum qualifications and of vesting the power to prescribe them in an expert body authorized by the Central Government is to ensure the provision of education of a certain quality to young students who pursue elementary education. Hence, consistent with this regulatory power, the authority prescribing the minimum qualifications does equally have the jurisdiction to determine as to whether a candidate in order to be regarded as eligible should have a qualification with a stipulated percentage of marks. The power of relaxation which has been granted by sub-section (2) to the Central Government is of a different nature. Sub-section (2) comes into effect where a State does not have adequate institutions offering courses of teachers’ training education or teachers possessing the minimum qualifications as laid down under sub-section (1) in sufficient number. Thereupon, the Central Government has been granted the power to relax the minimum qualifications for a stipulated period. Sub-section (2) is a power to relax the qualifications whereas sub-section (1) is a power of NCTE to lay down the qualifications in the first place. 10. In Para 1 of the notification, NCTE has required a senior secondary certificate (or its equivalent) with a stipulated percentage of marks and a diploma in elementary education besides the passing of the TET. A candidate such as the petitioner, who does not possess a diploma in elementary education would not be eligible to teach students of classes I to V in the first place. However, the effect of Para 3 of the notification is that a person with a BA/BSc and a BEd qualification has also been treated to be eligible for appointment as a teacher for classes I to V upto a particular date subject to undergoing an NCTE recognized six month special programme in elementary education after appointment. In that context, it is necessary to note that but for the provisions of Para 3(a), a person like the petitioner who does not have a diploma in elementary education, would not have been eligible to teach students of classes I to V. Under Para 3(a), the candidate must have a BA/BSc with a stipulated percentage of marks (50% under the notification of 23 August 2010 which was subsequently amended to 45% on 29 July 2011) and a BEd. It would be impermissible to hold that all students who have passed the BA/BSc irrespective of their percentage of marks fall in one class and should be treated as eligible. NCTE would even have been within its statutory powers in not introducing a provision in the nature of Para 3 but when it did so, it took a considered view that it was only candidates who had completed their BA/BSc with a stipulated percentage of marks and had passed the BEd who would be eligible. Both the requirements have to be fulfilled. There is nothing arbitrary or unconstitutional in laying down such a requirement. 11. At this stage, it would be necessary to advert to the judgment of the learned Single Judge in Baldev Singh’s case, which was decided on 20 August 2011. A special appeal4 was filed before a Division Bench of the Uttarakhand High Court by NCTE but was dismissed in default on 7 May 2013. NCTE has stated in its counter that it has applied before the Uttarakhand High Court for recall of the order of dismissal in default which is pending. 12. Be that as it may, we find ourselves unable to agree with the view which was taken by the learned Single Judge of the Uttarakhand High Court in Baldev Singh (supra). The learned Single Judge held in that case that prior to 27 September 2007, NCTE had not prescribed a condition of obtaining a stipulated percentage of marks for obtaining admission for the BEd course. This condition was imposed on 27 September 2007 by requiring that candidates who had obtained 45% marks at the minimum at graduation were eligible for admission to the BEd degree course, which was enhanced to 50% on 31 August 2009. The learned Single Judge held as follows: “Therefore such B.Ed. degree holders, prior to 2007, who had percentage in their graduation less than 45% were still holding a duly recognised B.Ed. degree. Can such a person be debarred by NCTE (where such a person holds a degree duly recognised 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. 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 27.9.2007 when there was no such restriction and their B.Ed. degree was recognised 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%.” 13. With great respect, we beg to differ. NCTE has not treated the BEd degree which a candidate has passed as invalid as held in Baldev Singh (supra). The BEd degree continues to be valid. However, what NCTE prescribed by its notification dated 23 August 2010 was that candidates falling within the purview of Para 3 would also be eligible to teach primary students of classes I to V if they hold a BA/BSc with at least 50% and a BEd qualification. This does not amount to an invalidation of the BEd degree but is only a stipulation to the effect that though a candidate does not otherwise fulfil the requirement of Para 1 of the notification (because as in the present case he or she lacks a diploma in elementary education), such a candidate would have to fulfil the requirements of Para 3 (a) in order to be eligible for imparting instruction to students of classes I to V. 14. The learned Single Judge in Baldev Singh (supra) was of the view that there is no intelligible differentia between a candidate having less than 50% and a candidate having more than 50% in the graduation in order to determine eligibility for appearing in the TET examination. In the view of the learned Single Judge, where the eligibility of a candidate has to be finally judged by the percentage of marks in the TET, the marks which a candidate has obtained in the graduation would be of no relevance. This in our view is, with respect, not a correct approach to the issue. In the view of the learned Single Judge, where the eligibility of a candidate has to be finally judged by the percentage of marks in the TET, the marks which a candidate has obtained in the graduation would be of no relevance. This in our view is, with respect, not a correct approach to the issue. As an expert body, NCTE is entitled to prescribe the requirement of an educational qualification, a training qualification and an eligibility test as has been done for the appointment of a person as a teacher at a certain level. Prescribing the percentage of marks which a candidate should obtain is as integral to the stipulation as is the prescription of the requirement of a qualification and one cannot be disassociated from the other. These are matters which lie within the domain of the expert body which is entrusted with the task under Section 23(1) of the RTE Act. It would, in the very nature of things, be impermissible for the High Court to inquire into the efficacy of that prescription or to determine whether an alternative prescription would equally be efficacious. If a modification is to be made to a qualification which is prescribed, it is for the authority and the authority alone to do so. There is nothing arbitrary or in violation of Article 14 of the Constitution. The final submission to the effect that NCTE having prescribed a senior secondary certificate for teaching classes I to V had no further statutory power to prescribe a requirement of a BA/BSc with at least 50% marks and a BEd qualification in Para 3 is without substance. If NCTE were not to make a provision in the nature as contained in Para 3, the petitioner would, in any case, not be eligible since he did not have a diploma in elementary education. It was because of the fact that NCTE made a provision in Para 3 that persons falling within the purview of that category are also eligible for teaching students of classes I to V. 15. The petitioner secured appointment as an Assistant Teacher though, admittedly, he does not fulfil the requirement prescribed in terms of the notification of NCTE dated 23 August 2010, as amended on 29 July 2011. The petitioner secured appointment as an Assistant Teacher though, admittedly, he does not fulfil the requirement prescribed in terms of the notification of NCTE dated 23 August 2010, as amended on 29 July 2011. We may also note that in the Government Order dated 27 September 2011 itself, with reference to which applications were invited, the requirement which was stipulated was that a candidate should have obtained at least 50% marks in the graduation together with a BEd degree. The petitioner having applied in pursuance of such an advertisement, would be bound by the terms of the advertisement. 16. For the reasons which we have indicated, we find no substance in the constitutional challenge. Hence, the petitioner would not be eligible to any relief. The petition is, accordingly, dismissed. There shall be no order as to costs.