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2015 DIGILAW 792 (PNJ)

Antim Kumari v. State of Haryana

2015-04-29

HARINDER SINGH SIDHU, SATISH KUMAR MITTAL

body2015
Harinder Singh Sidhu, J.:- 1. This order shall dispose of aforesaid 110 writ petitions as the common question of law and facts are involved therein. However, the facts are being taken from CWP No. 346 of 2013. 2. These writ petitions have been filed praying for quashing the condition in the advertisement dated 08.11.2012 issued by the Haryana Schools Teachers Selection Board for recruitment of Primary Teachers, which prescribes a certificate of having qualified Haryana Teacher Eligibility Test (HTET)/School Teachers Elgibility Test (STET) of Haryana as an essential qualification for recruitment to the said post. Rule 7 Appendix B of the Haryana Primary School Education (Group C) District Cadre Service Rules, 2012 has also been challenged which requires certificate of having qualified Haryana Teachers Eligibility Test/School Teachers Eligibility Test as a qualification for direct recruitment to the said posts, based on which the said qualification has been incorporated in the advertisement. 3. A little background would be essential to put the issue in perspective. A notification dated 17.04.2008 was issued by the State of Haryana stating that in order to improve the general standard of education in the State, it had been decided to conduct a School Teachers Eligibility Test (STET) for recruitment of all categories of school teachers including JBT Teachers, C&V Teachers, Masters, Lecturers, Headmasters and Principals in Government Schools of Haryana. It was decided to conduct this test once every year. The test was to be conducted by the Board of School Education, Haryana, Bhiwani. Pass percentage for candidates belonging to the General categories was fixed as 50% and for Scheduled Caste candidate as 45%. Eligible persons would get three chances to appear and pass the test. The certificate of passing issued would remain valid for five years for consideration for recruitment as School Teachers by the Haryana Staff Selection Commission. Consequent upon this decision, the then applicable Haryana Primary Education (Group C) District Cadre Service Rules, 1994 were amended vide the Haryana Primary Education (Group C) District Cadre Service (Amendment) Rules, 2008 by substituting the existing qualification for recruitment of Primary Teacher as under: "(iii) Matric with Hindi/Sanskrit (iv) Certificate of having qualified School Teacher's Eligibility Test (STET)". 4. The Right of Children to Free and Compulsory Education Act, 2009 (for short 'the RTE Act') was brought into force on 1.4.2010. 4. The Right of Children to Free and Compulsory Education Act, 2009 (for short 'the RTE Act') was brought into force on 1.4.2010. As per Section 23 thereof, a person to be appointed as a teacher in an elementary school was required to possess such minimum qualification as is prescribed by the academic authority to be notified by the Central Government. The National Council for Teachers Education (for short "NCTE"), was notified as such authority by the Central Government. Vide notification dated 23.08.2010 issued in accordance with Section 23(1) of the RTE Act, the National Council for Teachers Education specified that passing of a teachers eligibility test to be conducted by the appropriate Government would be one of the essential qualifications for a person to be eligible for appointment as a teacher in classes I to VIII. This notification was followed by guidelines dated 11.02.2011. Clause 10 and 11 of the said guidelines are relevant for the present purpose and are reproduced below: "Applicability 10. xx xx (d) TET conducted by the Central Government shall apply to all schools referred to in sub-clause (i) of clause (a) of section 2 of the RTE Act. (e) TET conducted by a State Government/UT with legislature shall apply to: (iii) a school of the State Government/UT with legislature and local authority referred to in sub-clause (i) of clause (n) of section 2 of the RTE Act; and (iv) a school referred to in sub-clause (ii) of clause (n) of section 2of the RTE Act in the State/UT. A school at (i) and (ii) may also consider eligibility of a candidate who has obtained TET Certificate awarded by another State/UT with legislature. In case a State Government/UT with legislature decides not to conduct a TET, a school at (i) and (ii) in that State/U.T. would consider the TET conducted by the Central Government. (f) A school referred to in sub-clause (iv) of clause (n) of section 2 of the RTE Act may exercise the option of considering either the TET conducted by the Central Government or the TET conducted by the State Government/UT with legislature. Frequency of conduct of TET and validity period of TET certificate. 11. The appropriate Government should conduct a TET at least once every year. Frequency of conduct of TET and validity period of TET certificate. 11. The appropriate Government should conduct a TET at least once every year. The Validity Period of TET qualifying certificate for appointment will be decided by the appropriate Government subject to a maximum of seven years for all categories. But there will be no restriction on the number of attempts a person can take for acquiring a TET Certificate. A person who has qualified TET may also appear again for improving his/her score." 5. Consequent upon the issue of these guidelines, the State of Haryana issued a notification dated 15.07.2011 stating that for recruitment of two types of teachers i.e. one for classes I to V and second for classes VI to VIII in all Government Schools and Aided Schools, a Haryana Teachers Eligibility Test (HTET) shall be conducted at least once every year by the Board of School Education Haryana, Bhiwani in accordance with the qualification prescribed by NCTE in its notification dated 23.08.2010 and as per the guidelines for conducting the test issued by NCTE vide its letter dated 11.02.2011. In this notification, it was provided that a person who secures 60% or more in the HTET Examination will be considered HTET pass and weightage shall be given to the HTET scores in the recruitment process. However, qualifying HTET would not confer a right on any person for recruitment/employment as it is only one of the eligibility conditions for appointment. It was clearly specified that the candidate must fulfill the other additional qualifications or conditions prescribed from time to time as per State Recruitment Rules while applying for the said post. The notification also stated that the validity period of HTET qualifying certificate for appointment shall be five years. There shall be no restriction on the number of attempts that a person can take for acquiring HTET certificate. There was also a provision for enabling an HTET qualified person to appear again for improving his or her score. Candidates who had already qualified the State Teachers Eligibility Test would have the option to appear in the fresh HTET to improve the score if desired. The validity of already STET qualified candidates was to continue for a period of five years from the date of passing the test. Candidates who had already qualified the State Teachers Eligibility Test would have the option to appear in the fresh HTET to improve the score if desired. The validity of already STET qualified candidates was to continue for a period of five years from the date of passing the test. Certain amendment to this notification were made vide later notification dated 03.10.2012, which however are not relevant for the present purpose. 6. Vide notification dated 11.04.2012, the Haryana Primary Education (Group 'C') District Cadre Service Rules, 1994 as amended from time to time were repealed and Haryana Primary School Education (Group 'C') District Cadre Service Rules, 2012 were notified. Sr. No. 2 of appendix 'B' of the Rules prescribes the qualification for direct recruitment of Primary Teacher (PRT) as under: Sr.No1. Designation of posts Xx Academic qualification and experience, if any, for direct recruitment on contract Xx Academic qualification and experience, if any, for appointment other than by direct recruitment on contract basis. Xx Primary Teacher (PRT) (i) Senior Secondary (or its equivalent) with at least 50% marks and 2 years Diploma in Elementry Education OR Senior Secondary (or its equivalent) with at least 50% marks and 2 year Diploma in Elementary Education in Elementary Education in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002; or (i) Senior Secondary (or its equivalent) with at least 50% marks and 2 year Diploma in Elementary Education OR Senior Secondary (or its equivalent) with at least 45% marks and 2 year with the NCTE (Recognition Norms and Procedure), Regulations 2002; OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachlor Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachlor of Elementary Education (BEl. Ed.); OR Senior Secondary (or its equivalent) with at least 50% marks and 2 year Diploma in Education (Special Education); (ii) Certificate of having qualified Haryana Teacher Eligibilty test (HTET)/ School Teachers Eligibility Test (STET). (iii) Matric with Hindi/ Sanskrit or 10+2/B.A./M.A.With Hindi as one of the subject. 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); (ii) Certificate of having qualification Haryana Teacher Eligibility Test (HTET)/ School Teachers Eligibility Test (STET). (iii) Matric with Hindi/ Sanskrit or 10+2/B.A./ M.A. With Hindi as one of the subject. 7. 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); (ii) Certificate of having qualification Haryana Teacher Eligibility Test (HTET)/ School Teachers Eligibility Test (STET). (iii) Matric with Hindi/ Sanskrit or 10+2/B.A./ M.A. With Hindi as one of the subject. 7. As per Note I to appendix 'B', in case of direct recruitment, the teachers working in privately managed Government aided, recognized and Government Schools are exempted from acquiring the qualification of passing HTET, if they have worked as a teacher for a minimum period of four years on the date of enforcement of the Rules. This exemption is a one time measure and such category of teachers on their appointment are required to qualify HTET not later than 1st of April 2015, otherwise their appointments shall stand terminated automatically. 8. As per information provided by the Deputy Director (Coordination) of the Office of Director, Secondary Education Haryana (i) the first STET for Elementary Teachers [JBT] was held on 15.10.2008 for which advertisement was issued on 25.08.2008. The result was declared on 15.10.2008; [ii] second similar test was held on 24.07.2009 and the result was declared on 17.08.2009. In that very year another test was held on 12.12.2009 for which advertisement was issued on 23.08.2009 and result declared on 27.12.2009; [iii] thereafter in response to the advertisement dated 30.07.2011, a similar test was held on 6.11.2011 and its result was declared on 02.12.2011, and [iv] the last test was held during the pendency of these writ petitions on 26.06.2013, for which advertisement was issued on 28.04.2013 and the result has been declared on 17.07.2013. 9. The advertisement impugned in these petitions was published on 8.11.2012 inviting applications for 8763 posts of Primary Teachers (PRT). The essential qualification/eligibility for primary teachers except District Mewat was specified as under: "Essential Qualification/Eligibility:- (i) Senior Secondary (or its equivalent) with at least 50% marks and 2 year Diploma in Elementary Education; OR Senior Secondary (or its equivalent) with at least 45% marks and 2-year Diploma in Elementary Education 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. EI. Ed.); OR Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Education (Special Education); OR B.A./B.Sc./ B.Com and 2-year Diploma in Elementary Education (by whatever name known). (For recognition of Diploma/Degree see note-2]. (ii) Certificate of having qualified Haryana Teacher Eligibility Test (HTET )/ School Teachers Eligibility Test (STET) of Haryana for Primary Teacher. Four years teaching experience as Primary Teachers as One time exemption of HTET/STET (See Note-3). (iii) Matric with Hindi/ Sanskrit or 10+2/B.A./ M.A. With Hindi as one of the subject." 10. The last date for submission of online application forms was 08.12.2012. It was clearly stipulated that the candidates must ensure that they fulfill all the eligibility conditions on the last date fixed for online application forms i.e. 08.12.2012. The applications of the petitioners in these cases were rejected on the ground that they did not fulfill the condition regarding having qualified HTET/STET on the date of submission of application forms. 11. The grievance of the petitioners, essentially, centres around the fact that the last HTET test before the publication of the impugned advertisement was held on 30.07.2011. No HTET test was conducted in the year 2012. Hence, the petitioners did not get the chance to appear and qualify the HTET test because the State failed to conduct the test in the year 2012. The argument is that the petitioners should not be made to suffer for the failure of the State to conduct the HTET in the year 2012. The cases fall essentially in three categories as noted by this Court in its order dated October 20.03.2013, when the Court formulated the following three questions, as arising for consideration in the writ petitions: "(i) Whether the candidates who have qualified JBT/ETT after 30.07.2011 and were in possession of all other eligibility conditions as on the cut-off date mentioned in the advertisement except the certificate of STET, which they could not obtain as no examination was held after they acquired the minimum eligibility, can be deprived of their right to compete? (ii) Whether the candidates who have qualified CTET during the year 2012 when no STET was held, are entitled to claim eligibility for the advertised posts in terms of guidelines issued by NCTE? (ii) Whether the candidates who have qualified CTET during the year 2012 when no STET was held, are entitled to claim eligibility for the advertised posts in terms of guidelines issued by NCTE? (iii) What would the fate of candidates who acquired JBT/ETT diploma after 30.07.2011, i.e. the date of advertisement to appear for the STET and who have qualified such test in the very first opportunity given to them on 26.06.2013 vide the advertisement dated 28.04.2013?" 12. Vide interim order dated 27.08.2013, the petitioners who had passed the HTET Test held in the year 2013 after the cut-off-date for submission of the applications were directed to be interviewed provisionally. The Board was however directed not to declare the result of the selection. Vide order dated 23.10.2013 the order dated 27.08.2013 was modified and it was directed that the candidates who possess all other eligibility conditions on the cut-off date as mentioned in the advertisement except the certificate of HTET, but have acquired the same after the cut-off date shall be treated eligible, though provisionally. The Board was given liberty to complete the selection process and declare the result subject to final outcome of the proceedings. 13. Based on the questions formulated in the order dated 23.10.2013, these petitions can be categorized into three sets: Set 1 where the petitioners are the candidates who possessed all the eligibility conditions as on the cut-off date in the advertisement i.e. 08.12.2012 except the certificate of HTET/STET, which they acquired in the test held on 26.06.2013 during the pendency of the writ petitions, the result whereof was declared on 17.07.2013. Set 2 where the petitioners are the candidates who had qualified CTET before the cut-off date but have not qualified HTET test held in 2013. Set 3 are those candidates who have acquired the JBT/ETT Diploma after the cut-off date in the advertisement i.e. 08.12.2012 but have qualified in the HTET held on 26.06.2013 the result whereof was declared on 17.07.2013. Set 1. 14. Regarding the candidates in the first set the Learned Advocate General, Haryana has placed on record a communication of the Government dated 20.04.2015. In the said communication, it has been stated that, if the Court permits, the Government is willing to consider giving appointment to those candidates, who have qualified the State Teachers Eligibility Test in 2013 after the cut-off date for submission of application i.e. 08.12.2012. In the said communication, it has been stated that, if the Court permits, the Government is willing to consider giving appointment to those candidates, who have qualified the State Teachers Eligibility Test in 2013 after the cut-off date for submission of application i.e. 08.12.2012. It has been further stated that they will be offered appointments in case the candidates have obtained marks equivalent to or more than the cut-off marks of the category for which recommendation in respect of 9455 candidates have already been received from the erstwhile Haryana School Teachers Education Board against 9875 advertised vacancies. It is stated that the Government has sufficient vacancies of Primary Teachers for consideration of the claims of the petitioners and in this way the competing claims of the petitioners and the selected candidates will be settled. However, before appointment scientific verification and verification of the antecedents of these candidates will be undertaken as ordered in CWP-12938-2014. 15. We do not see any reason not to permit the Government to act in the light of its decision contained in the communication of 20.4.2015. 16. Accordingly, considering that the claim of the petitioners in the first set of petitions has been conceded by the State Government, which has stated that it is willing to offer appointment to them, Learned counsel for the petitioners state that these petitions have become infructuous and may be disposed of as such. 17. Sh. Ram Kumar Malik, Sr. Advocate, appearing for the selected candidates expressed apprehension about the fate of the selected candidates. Learned Advocate General, Haryana referring to the communication dated 20.04.2015, assured that no selected candidates will be thrown out on the ground of non-availability of vacancies while adjusting the petitioners. Sh. Malik states that in view of this assurance he can have no grievance. Accordingly, the first set of petitions is disposed of as having become infructuous in view of the communication of the Government dated 20.04.2015. Set-2: 18. Learned counsel appearing for the petitioners states that they had cleared the Central Teachers Eligibility Test (CTET) before the cut-off date and fulfilled all other eligibility conditions for appointment. HTET test was not held in the year 2012. It is argued that this lapse of the Government should not be visited upon the petitioners. Reference has been made to the guidelines of the NCTE issued on 11.02.2011 which he would urge are mandatory. HTET test was not held in the year 2012. It is argued that this lapse of the Government should not be visited upon the petitioners. Reference has been made to the guidelines of the NCTE issued on 11.02.2011 which he would urge are mandatory. Clause 11 of these guidelines states that the appropriate Government should conduct a TET test every year. Ld. Counsel states that no doubt as per clause 10, the TET conducted by the Central Government is to apply to schools of Central Government and TET conducted by a State Government is to apply to a school of the State Government. However, as per clause 10 of these guidelines, in case the State Government decides not to conduct TET, then candidates who have qualified in the TET conducted by the Central Government may be considered eligible. It has been argued that, as concededly in the year 2012 HTET test was not conducted by the State of Haryana, the candidates who have qualified the Central Teachers Eligibility Test are liable to be considered eligible. 19. Learned Advocate General, Haryana has disputed this contention. He draws attention to the affidavit filed on behalf of NCTE in CWP-346-2013. In the said affidavit filed through the Regional Director Northern Regional Committee, it has been stated that the issue with respect to the nature of guidelines was considered by the Committee in its meeting held on 09.04.2014 and the Committee was of the view that in the eventuality of a State Teachers Eligibility Test not being conducted for inescapable circumstances, the State/UT could consider using the result of CTET. However, it is not mandatory for the State/UT to accept it. In the affidavit, it is specifically stated that the guidelines contained in clauses 10 and 11 of the NCTE guidelines dated 11.02.2011 are directory in nature. Education being a subject in the concurrent list, the power to frame appropriate legislation/regulation/rule vests with the appropriate legislature and the State Government is well within its rights to prescribe the qualification of eligibility that candidates applying for the post must necessarily qualify the Teachers Eligibility Test of the said State. Education being a subject in the concurrent list, the power to frame appropriate legislation/regulation/rule vests with the appropriate legislature and the State Government is well within its rights to prescribe the qualification of eligibility that candidates applying for the post must necessarily qualify the Teachers Eligibility Test of the said State. There would be no illegality in the same and merely because a State Government has failed to conduct a STET in a given year would not amount to taking a decision not to hold the exam and to hold the candidates who have qualified Central Teachers Eligibility Test as eligible. 20. Learned Advocate General, has also referred to notification dated 15.07.2011, as per which it has been decided to conduct a HTET every year. He states that there is no decision of the State Government not to conduct the State Teachers Eligibility Test and to treat candidates, who have qualified the Central Eligibility Test as eligible. He further states that the STET/HTET have been conducted for year 2008-09, 2009-10, 2011-12 and 2012-13. In this context, he has referred to the affidavit dated 22.10.2013 of Sh. Zile Singh, Deputy Director (Coordination), office of Director Secondary Education, Haryana, Panchkula filed in CWP-346-2013. Referring to the HTET for the year 2012-13, it has been stated that the said test was scheduled to be held in Feb.- March, 2013, but had to be deferred because of the annual exam of 10th and 12th classes and was conducted on 25/26.06.2013 and the result was declared on 17.07.2013. In the said test, 3,47,272 candidates had appeared, out of which 50,420 passed. 21. We have already noticed above that as per Section 23 of the RTE, a person to be appointed as a teacher in an elementary school is required to possess such minimum qualification as is prescribed by the academic authority to be notified by the Central Government. The National Council for Teachers Education has been notified as such authority by the Central Government. Vide notification dated 23.08.2010 issued in accordance with Section 23(1) of the RTE Act, the National Council for Teachers Education specified that passing of a teachers eligibility test to be conducted by the appropriate Government would be one of the essential qualifications for a person to be eligible for appointment as a teacher in classes I to VIII. 22. Vide notification dated 23.08.2010 issued in accordance with Section 23(1) of the RTE Act, the National Council for Teachers Education specified that passing of a teachers eligibility test to be conducted by the appropriate Government would be one of the essential qualifications for a person to be eligible for appointment as a teacher in classes I to VIII. 22. As per Section 2 of the RTE Act, the State Government is the appropriate Government in relation to a school established within the territory of the State Government other than a school established, owned or controlled by the Central Government. Thus, for recruitment of Primary Teachers for State Government Schools, the State Government is the appropriate Government. And as prescribed by the NCTE, which is the academic authority in terms of the mandate of the RTE Act, passing of a teachers eligibility test to be conducted by the State Government is one of the essential qualifications for eligibility for appointment as Primary Teacher. The NCTE has in its affidavit referred to above clarified that the guidelines relied upon by the Ld. Counsel for the petitioners are directory in nature. 23. Thus, there is no force in the argument of the Ld. Counsel for the petitioners that as HTET test was not conducted in the year 2012, the petitioners should be held eligible on the basis of their having qualified the CTET. The petitions in this set are thus dismissed. Set 3: 24. Petitioners in this set are the candidates who have acquired the JBT/ETT Diploma after the cut-off date in the advertisement i.e. 08.12.2012, but have qualified in the HTET held on 26.06.2013 the result whereof was declared on 17.07.2013. 25. It requires no argument to hold that the petitioners in this set have no claim as they did not possess the basic qualification before the cut-off date. 26. These petitions are accordingly dismissed.