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Allahabad High Court · body

2015 DIGILAW 374 (ALL)

NEERAJ KUMAR RAI v. STATE OF U. P.

2015-02-25

D.Y.CHANDRACHUD, SUNEET KUMAR

body2015
JUDGMENT Hon’ble Dr. Dhananjaya Yeshwant Chandrachud, C.J.—By these proceedings which have been instituted by 31 petitioners under Article 226 of the Constitution, there is a challenge to the constitutional validity of Clause (III) (i) (a) of a notification dated 29 July 2011 issued by the National Council for Teacher Education (NCTE) for the purpose of amending earlier notifications laying down minimum qualifications of eligibility for appointment as a teacher. NCTE has issued the said notification in exercise of powers conferred by Section 23 (1) of the Right of Children to Free and Compulsory Education Act, 2009 (Act of 2009). 2. The petitioners have passed the Teacher Eligibility Test (TET) after completing their B Ed course and after being awarded the degree qualification. Admittedly, the petitioners did not secure more than 45 percent marks in the Bachelor’s degree examination. They obtained admission to the B Ed course on the strength of having obtained more than 50 percent marks in the Postgraduate degree examination. The State Government issued a Government Order dated 27 September 2011 for making appointments of Assistant Teachers in Junior Basic Schools. Following an amendment made by NCTE on 29 July 2011, the State Government issued a Government Order dated 27 September 2011. An advertisement was issued on 30 November 2011 by District Basic Education Officers in the State for appointments of teachers in Junior Basic Schools, for teaching students between the classes I to V. These facts are not in dispute. 3. The Regulations framed by NCTE in 2002, 2005 and 2007 provided, inter alia, for eligibility to seek admission to the B Ed degree programme. In all the three sets of Regulations, the requirement of eligibility was that a candidate should have obtained at least 45 percent marks either in the Bachelor’s degree or in the Master’s degree. Clause 4 of the 2002 Regulations provided that candidates with at least 45 percent marks in the Bachelor’s/Master’s degree with at least two school subjects at the Graduation level would be eligible for admission. Clause 3 of the Regulations of 2005, contained a similar stipulation. Clause 3.2 of the 2007 Regulations similarly provided for eligibility by stipulating that candidates with at least 45 percent marks either in the Bachelor’s degree and/or in the Master’s degree or any other qualification equivalent thereto, are eligible for admission to the B Ed degree programme. Clause 3 of the Regulations of 2005, contained a similar stipulation. Clause 3.2 of the 2007 Regulations similarly provided for eligibility by stipulating that candidates with at least 45 percent marks either in the Bachelor’s degree and/or in the Master’s degree or any other qualification equivalent thereto, are eligible for admission to the B Ed degree programme. On 31 August 2009, a notification was issued by NCTE under which it was stipulated that, for admission to the B Ed degree programme, a candidate should have obtained either a Bachelor’s or Master’s degree with at least 50 percent marks. The requirement of a minimum of 45 percent marks in the Bachelor’s or Master’s degree was, thus, enhanced in the Regulations of 2009, to 50 percent. 4. NCTE issued a notification on 23 August 2010, in exercise of powers conferred by Section 23(1) of the Act of 2009 for the purpose of laying down minimum qualifications for a person to be eligible for appointment as a teacher in classes I to VIII in a school referred to in Section 2 (n) of the Act of 2009. Paragraph 3 of the notification provided for the training to be undergone. On 29 July 2011, Para 3 of the principal notification was amended. As amended, the requirement is as follows : “(III) For para 3 of the Principal Notification the following shall be substituted, namely : (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.” 5. The grievance of the petitioners is that they were not being considered for selection and appointment as teachers in Junior Basic Schools in pursuance of the advertisements issued by the State Government, on the ground that they had not secured at least 45 percent marks in the Graduation. The grievance of the petitioners is that they were not being considered for selection and appointment as teachers in Junior Basic Schools in pursuance of the advertisements issued by the State Government, on the ground that they had not secured at least 45 percent marks in the Graduation. The submission of the petitioners is that in framing the amending notification dated 29 July 2011, NCTE has overlooked the position that a person with at least 50 percent marks at the Graduate or Postgraduate stage is eligible for admission to the B Ed degree programme. Consequently, it has been urged that the requirement which has been laid down in the notification dated 29 July 2011 should incorporate, in addition, a Post-graduation with at least 50 percent marks. This submission proceeds on the basis that the notification dated 29 July 2011 uses the expression “in accordance with the NCTE (Recognition, Norms and Procedure) Regulations issued from time to time” in this regard. Based on those words, it has been submitted that a person who had received less than 45 percent marks in the Graduation but had received more than 50 percent marks in the Post-graduation was eligible for admission to the B Ed degree course. Hence, there is no reason or rational to exclude candidates, such as the petitioners, who have secured less than 45 percent marks in their Graduation, so long as they have completed the B Ed degree qualifications on the strength of having obtained more than 50 percent marks in the Postgraduate degree programme. 6. This is the submission which falls for consideration. 7. Now, at the outset, it must be noted that there are two distinct facets. The first is the requirement which has been laid down by NCTE for securing admission for the B Ed degree course. The second is the requirement which has been laid down by NCTE under Section 23 (1) of the Act of 2009 for teaching classes I to VIII. Insofar as the eligibility requirements for admission to the B Ed degree course are concerned, the Regulations framed by NCTE in 2002, 2005 and 2007 required a candidate to obtain at least 45 percent marks either in the Bachelor’s degree course or in the Master’s degree course. In 2009, this requirement of 45 percent marks at the minimum was enhanced to 50 percent when a notification was issued 31 August 2009. 8. In 2009, this requirement of 45 percent marks at the minimum was enhanced to 50 percent when a notification was issued 31 August 2009. 8. The notification issued by NCTE on 29 July 2011 under Section 23(1), on the other hand, prescribes the requirements in terms of minimum qualifications and training for a teacher for teaching students of classes I to VIII. Section 23 of the Act of 2009, inter alia, provides as follows : “23. Qualifications 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 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. 9. Under sub-section (1) of Section 23, to be eligible for appointment as a teacher, a person must possess such minimum qualifications as are laid down by an academic authority authorized by the Central Government. NCTE is that academic authority authorized by the Central Government. Under sub-section (2), the Central Government was vested with the power to relax the minimum qualifications required for appointment as a teacher for a period of not more than five years, where the State did not have adequate number of institutions offering courses or training in teacher education, or teachers possessing the minimum qualifications laid down under sub-section (1). Under the proviso to sub-section (2), a teacher who, at the commencement of the Act, did not possess the minimum qualifications prescribed in sub-section (1), was required to acquire them within a period of five years. Now, while issuing the notification on 29 July 2011 prescribing the training to be undergone, NCTE stipulated two categories in Clause (III) (i) (a). The first category consists of persons with Graduation with at least 50 percent marks and a B Ed qualification. Now, while issuing the notification on 29 July 2011 prescribing the training to be undergone, NCTE stipulated two categories in Clause (III) (i) (a). The first category consists of persons with Graduation with at least 50 percent marks and a B Ed qualification. The second category consists of persons with a Graduation with at least 45 percent marks and a one year B Ed in accordance with the NCTE (Recognition, Norms and Procedure) Regulations issued from time to time. The separate requirements of at least 50 percent marks in the Graduation (for the first category) and 45 percent marks in Graduation (for the second category) are obviously made having due regard to the fact that prior to 31 August 2009 and under the Regulations of 2002, 2005 and 2007, a Graduation with at least 45 percent marks was the eligibility condition for admission to the B Ed degree course (though, as we have noted, a Post-graduation with a minimum of 45 percent marks was also eligible). With effect from 31 August 2009, the requirement of eligibility was enhanced to 50 percent marks in the Graduation or Post-graduation for admission to the B Ed degree course. Clause (III) (i) (a), therefore, brought within its purview candidates who have at least 45 percent marks or, as the case may be, at least 50 percent marks in the Graduation having due regard to the provisions of the Regulations of 2002, 2005, 2007 and 2009. Significantly, NCTE, while framing the requirement in the notification of 29 July 2011, did not contemplate that those with a Postgraduate degree with at least 45 percent or 50 percent marks, as the case may be, would be brought within the purview of the notification. NCTE could have but has not done so. We are unable to read into the words “in accordance with the NCTE (Recognition, Norms and Procedure) Regulations issued from time to time” an implicit addition of a Post-graduation with at least 45 percent marks so as to cover those candidates who may not have secured at least 45 percent marks in the Graduation. Eligibility for admission to the B Ed degree course is one thing and the requirement for teaching students of classes I to V is quite another. The notification dated 29 July 2011 lays down minimum qualifications for a person to be eligible for appointment as a teacher. Eligibility for admission to the B Ed degree course is one thing and the requirement for teaching students of classes I to V is quite another. The notification dated 29 July 2011 lays down minimum qualifications for a person to be eligible for appointment as a teacher. In our view, there is nothing arbitrary or unconstitutional in NCTE laying down the requirement that in order to provide instruction in Junior Basic Schools for teaching students from classes I to VIII, a person must be a Graduate with at least a minimum of marks as stipulated therein. Hence, merely because the petitioners have obtained more than 50 percent marks in the Postgraduate degree, that would not make them eligible in terms of Clause (III) (i) (a) of the notification dated 29 July 2011 when, admittedly, they do not have a minimum of 50 percent marks in the Graduation. 10. Reliance was sought to be placed on behalf of the petitioners on a counter-affidavit which has been filed on behalf of the NCTE in the present proceedings. Paragraphs 5 and 6 of the affidavit read as follows : “5. That on the issue of prescribing minimum marks, these minimum marks were stipulated in accordance with the minimum marks required for seeking admission in the B. Ed Course as laid down in the NCTE (Recognition, Norms and Procedure) Regulations, notified from time to time. As per NCTE’s Regulations 2007/2009, the entry qualification for B. Ed is as under: “Candidates with at least 45%/50% marks either in the Bachelor’s Degree and/or in the Master’s Degree or any other qualification equivalent thereto, are eligible for admission to the programme.” Accordingly, in case, the candidate has acquired the minimum percentage of marks as per NCTE’s Regulations either in Bachelor’s Degree and/or in the Master’s Degree or any other qualification equivalent thereto, is eligible to appear in Teacher Eligibility Test by virtue of the NCTE’s Regulations in this regard. 6. That as regards another claim of the petitioner with regard to becoming a school teacher merely by acquiring a teacher education qualification, it may be mentioned that acquiring a degree or diploma in various teacher education courses does not confer any right of such person to become a teacher. It merely makes such a person eligible for appointment as school teacher. It merely makes such a person eligible for appointment as school teacher. It is for the appointment authority or the recruitment agency to appoint teachers in accordance with the extant recruitment rules. The notification issued by the NCTE laying down the teacher qualifications is in accordance with the mandate given to it by the Central Government for setting the norms from the view point of quality. Accordingly the various qualifications specified in the NCTE notification including the requirement of passing TET are in accordance with law. The contention of the petitioners that by acquiring a teacher education qualification a right has been conferred upon them to become a school teacher, as per prevailing recruitment rules at the time of obtaining the teacher qualification, is not tenable in the eyes of law.” Similarly, reliance was placed on a counter-affidavit filed by the NCTE in Special Appeal No 2076 of 2011 in similar terms. 11. In our view, the true meaning of the notification dated 29 July 2011 would have to be construed on the basis of the language of the notification as it stands. If NCTE intends to make eligible candidates with a Postgraduate degree with at least 50 percent marks, nothing prevents the regulatory authority from amending the notification. However, we are emphatically of the view that once an expert statutory body has been vested under Section 23(1) of the Act of 2009 with the function of laying down the minimum qualifications for appointment of teachers, it would not be permissible for the Court under Article 226 of the Constitution to tinker with the qualifications as prescribed or to expand the ambit of the prescribed qualifications by including a Postgraduate degree with a stipulated percentage of marks as sufficient compliance. These are matters which lie in the realm of policy for the expert authority. NCTE has sufficient powers under the law to amend the notification. The High Court cannot while interpreting the notification rewrite the language of the notification. The High Court cannot add or include additional categories. 12. Learned Senior Counsel appearing on behalf of the petitioners has sought to place reliance on two Full Bench judgments of this Court. NCTE has sufficient powers under the law to amend the notification. The High Court cannot while interpreting the notification rewrite the language of the notification. The High Court cannot add or include additional categories. 12. Learned Senior Counsel appearing on behalf of the petitioners has sought to place reliance on two Full Bench judgments of this Court. The judgment of the Full Bench in Jitendra Kumar Soni v. State of U.P., (2010) 7 ADJ 403 (FB), held that it was not open to the State Government to exclude students who had obtained their degree or diploma, inter alia, in LT/B P Ed/D P Ed/C P Ed from institutions and universities established by law situate at places outside the State and duly recognized by NCTE from applying either for the Special BTC or BTC course. The second judgment of the Full Bench in Bhupendra Nath Tripathi v. State of U.P., 2009 (1) ADJ 232 , held, inter alia, that a degree which was being granted earlier by Universities in exercise of powers under Section 22 of the University Grants Commission Act, 1956 could not be inferior than a degree of B Ed now awarded from institutions after their recognition under Section 14 (3) of the NCTE Act, 1993. The Full Bench held that the exclusion of candidates (from the field of eligibility for the Special Basic Training Course 2007) who have obtained a B Ed degree prior to the enforcement of the NCTE Act, 1993 or after the enforcement thereof during the period when the application of the institution or university for recognition was pending consideration, would be violative of Article 14 of the Constitution. Neither of the two decisions of the Full Bench have any relevance to the issue which has been raised in these proceedings. Plainly, the petitioners do not meet the requirements contained in the notification dated 29 July 2011. 13. For these reasons, we hold that there is no substance in the writ petition. The petition shall stand, accordingly, dismissed. However, there shall be no order as to costs.