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2016 DIGILAW 217 (UTT)

Harish Chand v. State of Uttarakhand

2016-05-13

SUDHANSHU DHULIA

body2016
JUDGMENT : Sudhanshu Dhulia, J. 1. After the 86th amendment in the Constitution of India and the incorporation of Article 21-A as a Fundamental Right, a child up to 14 years in India has a Fundamental Right for Elementary Education. Article 21-A of the Constitution of India reads as under:- “21-A. Right to Education. – the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.” 2. In order to make this right a meaningful right, the Government further passed a Parliamentary Legislation known as “Right to Education Act” (from hereinafter referred to as “Act”). In the Act itself, the Parliament has laid down a provision, whereby the Central Authority shall appoint an academic authority by notification, which shall lay down the qualifications of teachers in Elementary Schools and the procedures and methods for their appointment. This is given in Section 23 of the Act, which reads as under: “Section 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, 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 be prescribed.” (emphasis supplied) 3. In pursuance thereof, the National Council for Teachers Education (from hereinafter referred to as “NCTE”) which is a creature of a statute, was appointed as a Nodal Agency and this particular authority after a meaningful discussion with concerned persons and authorities on the subject had passed a detail order on 23.08.2010. In pursuance thereof, the National Council for Teachers Education (from hereinafter referred to as “NCTE”) which is a creature of a statute, was appointed as a Nodal Agency and this particular authority after a meaningful discussion with concerned persons and authorities on the subject had passed a detail order on 23.08.2010. In the said notification (from hereinafter referred to as “NCTE order dated 23.08.2010”), the qualifications of Assistant Teachers in Primary Schools (Classes 1st to 5th) as well as Senior Primary Schools (Classes 6th to 8th) have been laid down. 4. Sufficient for us at this juncture would be the fact that two of the essential qualifications for appointment of Assistant Teacher in Primary School are that a candidate must have a two years diploma in training in Elementary Education, by whatever name it is called in that State. For example, it is called in Uttarakhand as Basic Training Certificate or BTC, which is a two years certificate. In other places such as Delhi, it is called as Diploma in Elementary Teachers Education. It may have a different nomenclature in other States. What is important, however, is that the essential qualification is that a person must be trained in imparting education at elementary level. 5. In other words, a person having higher training qualifications such as B.Ed. or even higher, is not actually “qualified”, though he may be qualified for teaching higher classes! This has been purposely done as both the Right to Education Act as well as the NCTE notification stress that Elementary Education should not just be a mere formality but it should be a meaningful education. 6. Apart form the above qualifications, another mandatory qualification is that a candidate must qualify a test which is known as Teachers Eligibility Test (from hereinafter referred to as “TET”). Examination for this test is conducted at State level in Uttarakhand, which is known as “UTET” and at the centre it is known as “CTET”. 7. A limited relaxation, however, was given in the NCTE order whereby even such candidates who are not having the qualification in Elementary training but who were B.Ed. i.e., Bachelor in Education were also held to be qualified, by way of a relaxation, initially for a period up to 01.01.2012, which was later extended up to 31.03.2014. Further vide order dated 12.08.2014 it was extended by the NCTE till 31.03.2016. i.e., Bachelor in Education were also held to be qualified, by way of a relaxation, initially for a period up to 01.01.2012, which was later extended up to 31.03.2014. Further vide order dated 12.08.2014 it was extended by the NCTE till 31.03.2016. The powers for relaxation are also given in sub-section (2) of Section 23, referred above. This relaxation and extension has a purpose. The purpose is that initially in Uttarakhand as well as in other States, Primary Schools or even Senior Primary Schools were few and far between. Children had to travel a long distance, in order to go to a Primary School. With the passage of time and the drive undertaken by different States, it is a common knowledge that in the last few decades, there has been an enormous growth of Primary Schools and Senior Primary Schools throughout the country. At least in Uttarakhand it is true. 8. This, phenomenon in turn had its problems, as though there were more schools where elementary education could be imparted, yet the State was still having a difficulty with trained teachers i.e., teachers trained in imparting elementary education! For example, in Uttarakhand BTC Certificate is imparted at an institute called District Institute of Education and Training (from hereinafter referred to as “DIET”). It is a district level institute but it has limited seats about 100 seats or so in each District. 9. These trained teachers who come out of these institutes i.e., DIET cannot meet the growing demand in the market for trained elementary teachers! Since it would take some time for the State to get more institutions where BTC training or training in Elementary Education can be given, for the intervening period it was thought best that candidates who are B.Ed. may also be recruited. Hence, in order to meet a particular contingency, this relaxation has been given, for a limited period. As already been referred above, this extension came to an end on 31.03.2016. Moreover, under Section 23(2) of the Act, the Central Government can relax the qualifications, but not exceeding five years. These five years have already come to an end. Hence, this relaxation cannot be extended any further! 10. In any case, the above relaxation is with a very strong caveat. Moreover, under Section 23(2) of the Act, the Central Government can relax the qualifications, but not exceeding five years. These five years have already come to an end. Hence, this relaxation cannot be extended any further! 10. In any case, the above relaxation is with a very strong caveat. While giving such relaxation, NCTE has clarified in paragraph 2(iii) of the notification dated 12.08.2014 that priority has to be given to such candidates who are qualified in Elementary Education and only thereafter, other candidates such as B.Ed. qualified candidates can be considered. It is this aspect, which is presently being relied upon by the petitioner in the above writ petition. The notification dated 12.08.2014 is in continuation of the earlier notification dated 23.08.2010 by the NCTE. It says in its paragraph 2(iii) that the State Government shall give priority to such candidates who have the required qualifications prescribed by NCTE from time to time and only thereafter consider the candidature of such candidates who have the qualifications given under paragraph 3(a) of the order. In paragraph 3(a) of the notification dated 23.08.2010 is the qualifications given or a relaxation given whereby B.Ed. qualifications were also made eligible, but only for a limited period. 11. The petitioner is a permanent resident of Uttarakhand and has all the qualifications including Diploma in Elementary Education which he has done in the year 2002 from Delhi. The certificate to this effect has also been annexed as Annexure No.4 to the writ petition. 12. Petitioner challenges the advertisement dated 17.02.2016 whereby in the recruitment drive for the post of Assistant Teachers in Elementary Schools, the State has invited applications from only B.Ed. qualified candidates. They have not even asked candidates such as the present petitioner who have Diploma in Elementary Education to even apply. In other words, they are the ones who have been excluded from even applying for the post of Assistant Teacher. 13. The learned counsel for the petitioner submits that this is in clear violation not only of the Right to Education Act but the clear directions given by the NCTE in its notification dated 23.08.2010 and all other subsequent notifications including the notification dated 12.08.2014. 14. 13. The learned counsel for the petitioner submits that this is in clear violation not only of the Right to Education Act but the clear directions given by the NCTE in its notification dated 23.08.2010 and all other subsequent notifications including the notification dated 12.08.2014. 14. This Court being prima facie satisfied with the contention of the petitioner and vide order dated 19.03.2016 had directed the State Government that a fresh advertisement be published inviting applications also from such candidates as well who have Diploma in Elementary Education, so that the mandate of law in view of the notification dated 23.08.2010 be fulfilled. The relevant portion of the order dated 19.03.2016 reads as under:- “It is further made clear that the respondents shall publish a fresh advertisement inviting applications also from all such candidates who have diploma in Elementary Education as that is the mandate of law and in view of the notification dated 23.08.2010 of N.C.T.E., which is binding upon the State Government. It is further made clear that in the fresh advertisement, at least three weeks time be given to the applicants to apply, for which the last date of submitting the application shall be extended. Respondents shall file counter affidavits within a period of three weeks. List this matter on 25.04.2016 in the daily cause list.” 15. This matter has been listed on several occasions before this Court. In this matter, counter affidavit has been filed by the State to which rejoinder affidavit has also been filed by the petitioner. Interveners have also moved their applications and their counsels have also been heard at length by this Court. A categorical statement has been given by Mr. Anil Joshi, Additional Chief Standing Counsel for the State that they have not complied with the order dated 19.03.2016, without giving any reasonable explanation as to why! 16. Learned counsel for the interveners Mr. S.C. Upadhyaya and Mr. S.K. Mandal have argued that B.Ed. has been included as the qualification in the Rules, 2012 known as “Uttarakhand Government Elementary Education (Teachers) Service Rules, 2012 (from hereinafter referred to as “Rules of 2012”) which have subsequently been amended in the year 2016. These Rules petitioner has not challenged before this Court. Moreover, they further say that this is an exclusive drive only for the B.Ed. has been included as the qualification in the Rules, 2012 known as “Uttarakhand Government Elementary Education (Teachers) Service Rules, 2012 (from hereinafter referred to as “Rules of 2012”) which have subsequently been amended in the year 2016. These Rules petitioner has not challenged before this Court. Moreover, they further say that this is an exclusive drive only for the B.Ed. qualified candidates as this is the last chance for them to compete, as this relaxation will exhaust on 31.03.2016. Further he has taken this Court to the Government Order dated 31.01.2014 which is mentioned in the advertisement which says that there is a different procedure and method for evaluation of B.Ed. qualified candidates and a different method for evaluating the merit of a B.Ed. qualified candidate. Hence, the two cannot be mixed. 17. On this, in fact there is no dispute. For a BTC candidate, earlier the qualifications were that he had to be evaluated on the basis of his marks obtained in the TET test. Later by an amendment in the year 2013, this method was changed and 60% marks were to be given on the basis of marks obtained in BTC and 40% marks obtained in TET. For a B.Ed. qualified candidate, there is a different evaluation. He is evaluated on the basis of his marks obtained in High School, Intermediate, Graduation, B.Ed. Therefore, the argument from the respondents would be that since there is an absolutely different method of evaluation, the two can never be evaluated together and therefore for this reason, the exclusive exercise for recruitment of B.Ed. candidates cannot be faulted with. This argument, however, is entirely misconceived. This is for the reason that even though there may be a different method for evaluating a B.Ed. candidate, as different from evaluating a BTC candidate, the fact still remains that as per the NCTE notification dated 23.08.2010 and the subsequent clarifications made by NCTE particularly in its order dated 12.08.2014 whenever a recruitment has to take place, a BTC candidate has to be given a priority. In other words, between a BTC candidate and B.Ed. candidate there is no competition! No matter what the marks of BTC candidate are, he or she would always be placed higher against a B.Ed. candidate. There is no competition between the two because the law itself makes it mandatory that whenever selections have to be made from BTC and B.Ed. In other words, between a BTC candidate and B.Ed. candidate there is no competition! No matter what the marks of BTC candidate are, he or she would always be placed higher against a B.Ed. candidate. There is no competition between the two because the law itself makes it mandatory that whenever selections have to be made from BTC and B.Ed. candidates, the BTC candidates have always to be given a priority. In other words, if qualified BTC candidates are available for the post, a B.Ed. candidate is not even liable to be considered. 18. This is so for absolutely valid reason as well. The reasons are not far to seek. It is a BTC candidate who is actually qualified and a B.Ed. candidate is strictly not even qualified to teach in an Elementary School. He becomes qualified only by way of a relaxation! The relaxation being given to them to compete is a matter of an exigency and to meet the urgent situation, where BTC candidates are not available. In other words, once the BTC candidates are available, B.Ed. candidates should not even be considered in the first place. 19. Learned counsel for the intervener Mr. S.C. Upadhaya then relied upon the judgment of the Division Bench of this Court in the case of State of Uttarakhand & another Vs. Keshavanand Jhaldiyal reported in 2014 (2) U.D. 485 . The same has been perused by this Court. The said judgment was on a different aspect altogether. In a special recruitment drive where only for the B.Ed. qualified candidates, to the exclusion of qualified Elementary school teachers, are being considered was not a matter before the Division Bench of this Court. The facts of that case are entirely different. 20. The State Government by making a special and exclusive recruitment drive for the B.Ed. qualified candidates is defeating the very purpose for which the Right to Education Act was enacted in the first place. 21. There is another objection which has come forward from the side of the respondents, which is that the petitioner has not challenged the “Rules” whereby B.Ed. has been made a qualification. There is in fact no need for the petitioner to challenge the Rules. A categorical statement has been given by the learned counsel for the petitioner that he is not against the B.Ed. has been made a qualification. There is in fact no need for the petitioner to challenge the Rules. A categorical statement has been given by the learned counsel for the petitioner that he is not against the B.Ed. qualified candidates being considered, his only objection is that the law mandates that the BTC candidates have to be given a priority over the B.Ed. candidates. The State Government instead of giving the priority or preference to BTC candidates has taken an exclusive recruitment drive to the exclusion of the BTC qualified candidates. This Court is of the considered view that there is absolutely no need to challenge the Rules. In any case, the Rules are for a limited period and after 31.03.2016 in any case, they would become irrelevant. 22. The writ petition therefore succeeds. The advertisement dated 17.02.2016 is hereby quashed. A mandamus is hereby issued to the State Government to publish a fresh advertisement seeking applications from eligible candidates as required under the Right to Education Act and as mandated by NCTE in its notification, which may include B.Ed. candidates as well. The objection of the respondents that the relaxation which was applicable only till 31.03.2016 would prohibit the State Government from doing that is not proper inasmuch as since the recruitment drive in the present case had been initiated prior to 31.03.2016 and in any case in these vacancies, this relaxation can be given but only as a last chance for the B.Ed. candidates where they will be evaluated along with the candidates who have a Diploma in Elementary Education where candidates having a valid Diploma in Elementary Education have to be given a priority. 23. It is further made clear that in case any selections have been made so far on this basis, they shall automatically be set aside. It is further made clear that such candidates who had already applied in pursuance of the advertisement and were qualified on the date of the application shall be allowed to participate in spite of the fact that they have meanwhile crossed the age bar.