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2017 DIGILAW 449 (UTT)

State of Uttarakhand v. Geeta Pandey

2017-08-23

RAJIV SHARMA, SHARAD KUMAR SHARMA

body2017
JUDGMENT : Sharad Kumar Sharma, J. The respondents/petitioners filed the writ petition challenging the Government order dated 4.3.2014 whereby the Government has exempted the requirement of qualification known as Teacher Eligibility Test (TET) for a set of B.T.C. qualifications holders. The contention of the petitioners was that they have under-went a training known as B.T.C. which is a necessary qualification for appointment to the post of teachers in an elementary schools as provided by Rules of 1981. 2. There were two sets of B.T.C. training teachers before the writ court, the difference between the two B.T.C. trained teachers was that one set the petitioner who has passed the B.T.C. by open competition, as they became eligible for admission in B.T.C. course, which would then enable them to clear their TET qualification. 3. Whereas on the other hand, the private respondents in the writ petition, who were not competent to undergo the training courses of B.T.C., but they claimed the benefit to be granted to them by the Government for their past services rendered as Shiksha Mitra as they were imparting education to the primary school children in remote areas of the State. 4. The petitioners’ contention in the writ petition was that the Government order issued on 4.3.2014 by which Shiksha Mitra, B.T.C. training has been exempted from qualifying Uttarakhand TET-1 and CTET-1, which happens to be a mandatory qualification for appointment as Assistant Teacher in Government Primary School. As per Rule 9 of Uttarakhand Rajkiya Prarambhik Shiksha Service Rules 2012 no exemption from TET could have been granted. The contention of the petitioners in the writ petition was that they have completed their regular B.T.C. training in the month of June 2012 along with Shiksha Mitra B.T.C. Trainee at various DIETS and in accordance with the Government Order dated 5.11.2005 issued by the State of Uttarakhand whereby a policy decision was taken by the State to start the B.T.C. course for Batch 2006-07 for appointment of Assistant Teachers in Government Primary School under the provisions of UP. Basic Education Teacher Service Rules 1981. 5. By the Government order it was decided that B.T.C. course for the batch 2006-07 would be started. The petitioner further submitted that on account of the fact that the Basic Education Act, 1972 was adopted by the State of Uttarakhand under the U.P. Reorganization Act, come. Basic Education Teacher Service Rules 1981. 5. By the Government order it was decided that B.T.C. course for the batch 2006-07 would be started. The petitioner further submitted that on account of the fact that the Basic Education Act, 1972 was adopted by the State of Uttarakhand under the U.P. Reorganization Act, come. The Uttarakhand School Education Act of 2006, was had into existence and as a consequence of Section 60 of Uttarakhand School Education Act, 2006, the U.P. Basic Education Act was repealed. 6. By an advertisement dated 27.12.2005 a process of open competitive examination comprising of a written examination for appointment of teachers was to be held and the examination for the said course was to be conducted on 23.8.2009, but according to the petitioners who claim through open selection process was delayed and it could be started only on 26.4.2010. 7. The petitioners submitted that they were entitled to be considered in accordance with the Rules and Regulations as prevailing at the time when the selection process has commenced under open selection and their selection process would not be affected by any subsequent change of Rules against the post for which the selection has already started. 8. By the Government order dated 1.3.2009 the State Government took a decision that out of total 2900 Shiksha Mitra, 1300 Shiksha Mitra were already working in the Government Primary School in different Districts and they were held to be eligible for regular B.T.C. courses without any entrance examination, consequently 100 B.T.C. trainees, 100 Shiksha Mitra started their training in April, 2010 which ended in June, 2012. 9. Right to Education Act was brought into effect by 86th Constitutional Amendment when Article 21-A was amended and made part of the constitutional mandate, it provided for Right of Children to Free And Compulsory Education Act, 2009 which was passed by the Parliament in order to improve the quality of work. The National Council For Teacher Education Act, 1993, was notified on 23.8.2010 by a publication issued in Gazette of India, which introduce TET as essential qualification for the purposes of appointment as Assistant Teacher in Government Primary School as contemplated under Section 2 (n) of the Right of Children to Free And Compulsory Education Act, 2009. 10. The National Council For Teacher Education Act, 1993, was notified on 23.8.2010 by a publication issued in Gazette of India, which introduce TET as essential qualification for the purposes of appointment as Assistant Teacher in Government Primary School as contemplated under Section 2 (n) of the Right of Children to Free And Compulsory Education Act, 2009. 10. The contention of the petitioners was that since the advertisement was issued as back in the year 2005 and the Government order dated 4.6.2011 exempting the selected regular B.T.C. trainees from TET and since Uttarakhand Government Primary (Teachers) Service Rules were notified on 28.12.2012, which in its Rule 9 dealing with the eligibility clause for appointment of teachers in Government Primary School it made TET-1 as one of the essential qualification for appointment. 11. The State by the Government order dated 29.8.2012 relaxed the criteria as provided under Section 9 of the Act of 2012, while exercising powers under section 28 of Uttarakhand Government (Primary Teachers) Service Rules 2012, by virtue of this amendment the exemption was granted to the selected regular B.T.C. trainees from qualifying the TET examination. The petitioners submitted that the Government orders dated 14.6.2011 & 29.8.2012 was challenged by Shiksha Mitras in bunch of writ petitions and the Government order was quashed by this court in its judgment rendered on 13.12.2012. Relevant part of the judgment dated 13.12.2012 is quoted hereunder:- “15. Now, since this Court has held that TET is a mandatory qualification, all such candidates who have gained selection and consequent appointment in district Champawat who do not have TET qualification will be made to appear in the next TET examination, and only if they qualify the said examination, they shall continue as teachers. Till they qualify the examination, their appointment shall be wholly temporary in nature and in the event that they fail to qualify the examination, the Government shall terminate their services. It is also made clear that such candidates who have been selected by virtue of having qualified TET in district Champawat, shall continue as teachers. 16. Till they qualify the examination, their appointment shall be wholly temporary in nature and in the event that they fail to qualify the examination, the Government shall terminate their services. It is also made clear that such candidates who have been selected by virtue of having qualified TET in district Champawat, shall continue as teachers. 16. This Court is also of the view that the Government should not have passed the order dated 29.8.2012 for the reason that even a day prior to it, the Government of Uttarakhand had framed Rules known as Uttarakhand Government Primary School Teacher Service Rules, 2012, where the Government had itself prescribed the mandatory conditions for appointment of primary school teacher which included a person to have qualified TET. Therefore, Orders 14.6.2011 and 29.8.2012 are hereby quashed. Consequently the writ petition No. 1528 of 2012 succeeds as it questions the very exemption granted by the respondents on 14.6.2011 and 29.8.2012 to a set of B.T.C. trained teachers.” 12. In the light of the judgment dated 13.12.2012 the Government order dated 4.3.2012 passed by the State Government to appoint B.T.C. trainee teachers about 1278 Shiksha Mitra as Assistant Teacher in Government Primary School, on the same day another letter was issued by Director Uttarakhand Basic Education to District Education Officer to appointment B.T.C. Shiksha Mitra on the post of Assistant Teacher in Government Primary School. 13. According to the petitioners the purpose of the Government order dated 4.3.2012, which was a letter of National Council For Teacher Education Act, 1993, was only clarificatory in nature regarding the requirement of qualifying the TET examination. 14. The petitioners submitted that the recommendation made between the Government and National Council For Teacher Education Act, 1993, with regards to the Para 5 of the notification dated 23.8.2010 provided that the appointments to be made as per National Council For Teacher Education Act, 1993 (Determination of Minimum Qualification for Recruitment of Teachers in schools) Regulations 2001. 14. The petitioners submitted that the recommendation made between the Government and National Council For Teacher Education Act, 1993, with regards to the Para 5 of the notification dated 23.8.2010 provided that the appointments to be made as per National Council For Teacher Education Act, 1993 (Determination of Minimum Qualification for Recruitment of Teachers in schools) Regulations 2001. The submission of the petitioners was that for getting the benefit as provided in the notification dated 23.8.2010 there has to be a process of appointment initiated prior to the date of notification and in the present case according to the petitioners the appointment of Shiksha Mitra under Sarva Shiksha Abhiyan can never be termed as to be an appointment and, thus, the Shiksha Mitra who are para teachers to meet the shortage and contingency of work cannot claim the benefit as provided by the notification dated 23.8.2010. 15. The contention of the petitioners was that since the selection of B.T.C. trainees were commenced on 27.12.2005 and the written examination and select list was prepared in accordance with the Government order dated 6.6.2008 & 20.6.2008, which clearly states that the training has been undergone against the existing posts the selection process stood initiated. Thus the contention of the petitioners was that the State has completely failed to accomplish constitutional obligations as provided by the 86th Constitutional Amendment, introducing Article 21-A holding that statutory obligations that TET shall be conducted every year so as to provide ample opportunity to the teachers to be appointed. 16. Under the aforesaid backdrop, the petitioners flied the writ petition with the following relief. “(i) Issue a writ or order in the nature of Certiorari quashing the impugned G.O. No. 336/XXIV/2014-15/2008 TC III dated 04.03.2014. (ii) issue a writ, order or direction in the nature of Mandamus directing the respondents to grant the benefit of para 5 of Notification dated 23.08.2010 to the selected B.T.C. trainees. (iii) Issue any other or further writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. (iv) To award the cost of the petition in favour of the petitioner and against the respondent.” 17. (iii) Issue any other or further writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. (iv) To award the cost of the petition in favour of the petitioner and against the respondent.” 17. After the exchange of pleadings the learned Single Judge by the impugned judgment dated 15.7.2014 allowed the writ petition and the order dated 4.3.2014 by virtue of which the exemption was granted to the respondents from taking TET was quashed and following directions were issued. “20. Having said this, it is made clear that respondents who are presently working as Shiksha Mitra shall continue to work as Shiksha Mitra, and will be given a chance to qualify the TET and if they qualify only then they shall be considered for permanent appointment as teacher. This Court has also been informed that since its inception TET examination is not being held by the State Government even once in a year. TET examination preferably must be held at least twice a year. 20. In view thereof, it is hereby directed to the State Government that for the next year, at least, they shall hold TET examination at least once in every six months, as this itself would solve the problem of unfilled vacancies to some extent.” 18. Against the judgment and order dated 15.7.2014 passed by the learned Single Judge the present appeal has been preferred by the State. 19. The contention of the State Government in the special appeal is that the judgment impugned runs contrary to the Uttarakhand Government Primary Education Teachers Amendment Rules 2014, which came into force on 5.3.2014, which provided an exemption to the Shiksha Mitra which could be exempted for the qualification of TET in view of the notification dated 17.2.2014 as issued by the National Council For Teacher Education Act, 1993. 20. 20. So far as the implication of the amendment made in the Service Rules of 2014 is concerned the said issue as settled by the learned Single Judge has already been decided by the learned Single Judge vide its judgment dated 19.11.2016 in W.P. No.1576/2016 the said judgment rendered on 19.11.2016 has been challenged in bunch of special appeals with leading special appeal no.54/2017, which has been dismissed on the ground that the said provision has been declared ultar vires by Allahabad High Court, which has been affirmed by the Apex Court vide its judgment rendered on 25.7.2017 in Civil Appeal no.9529/2017 “State of U.P. and ors V/s Anant Kumar Yadav & others” whereby a bunch of SLPs were decided holding thereof that the provisions of exemption to be ultra vires, but granted exemption for a certain period to the Shiksha Mitra to complete their TET within the stipulated period as provided therein, to make them compatible with others as far as qualification is concerned. 21. In the instant case too, the petitioners who are the direct recruits and respondents were Shiksha Mitra the petitioners had challenged the Government order granting exemption to Shiksha Mitra from TET, as far as the propriety of the TET examination is concerned the same has attained finality by a judgment rendered by this Court in “Bhuwan Chandra V/s State & others” as decided on 13.12.2012. 22. In other set of litigation decided by virtue of the judgment dated 13.12.2012 rendered in W.P. No.1506/2012, the second set of set of teachers i.e. the Shiksha Mitra, had challenged the order dated 14.6.2011 whereby the exemption from TET was granted to such teachers, who have done their B.T.C. through open competition. 23. The court rejected the claim of the petitioners of W.P. No.1506/2012 and held that the exemption granted to the B.T.C. teachers who have been inducted by open course was wrong and now the second set of teachers have again challenged the exemption. 24. The learned Single Judge allowed the writ petition and held that the Government order dated 4.3.2014 granting exemption to the Shiksha Mitra was bad and thus the writ petition was decided by the impugned judgment dated 15.7.2014. 25. Almost, the controversy since now stand settled by the Apex court judgment as rendered on 25.7.2017 with the following direction. The relevant part of the judgment dated 25.7.2017 is quoted hereunder:- 21. 25. Almost, the controversy since now stand settled by the Apex court judgment as rendered on 25.7.2017 with the following direction. The relevant part of the judgment dated 25.7.2017 is quoted hereunder:- 21. “We are in the agreement with the above findings. In view of clear mandate of law statutorily requiring qualification for appointment of teachers to be appointed after the date of Notification dated 23rd August, 2010, there is no doubt that no appointment was permissible without such qualifications. Appointments in the present case are clearly after the said date relaxation provision could be invoked for a limited period or in respect of persons already appointed in terms of applicable rules relating to qualifications. The Shiksha Mitras in the present case do not fall in the category of pre 23rd August, 2010 Notification whose appointment could be regularized. 22. Further difficulty which states one in the face is that the law laid down by this Court on regularization of contractually appointed persons in public employment. Appointment of Shiksha Mitras was not only contractual. It was not as per qualification prescribed for a teacher nor on designation of teacher nor in pay scale of teachers. Thus, they could not be regularized as teachers. Regularization could only be of mere irregularity. The exceptions carved out by this Court do not apply to the case of the present nature. 23. In view of our conclusion that the Shiksha Mitras were never appointed as teachers as per applicable qualifications and are not covered by relaxation order under Section 23 (2) of the RTE Act, they could not be appointed as teachers in breach of Section 23 (1) of the said Act. The State is not competent to relax the qualifications. 24. Since, we have given full hearing to all Shiksha Mitras through their respective counsel. It is not necessary to consider the argument of breach of procedure under Order 1 Rule 8 CPC. 25. On the one hand, we have the claim of 1.78 Lakhs persons to be regularized in violation of law, on the other hand is the duty to uphold the rule of law and also to have regard to the right of children in the age of 6 to 14 years to receive quality education from duly qualified teachers. Thus, even if for a stop gap arrangement, teaching may be by unqualified teachers, qualified teachers have to be ultimately appointed. Thus, even if for a stop gap arrangement, teaching may be by unqualified teachers, qualified teachers have to be ultimately appointed. It may be permissible to give some weightage to the experience of Shiksha Mitras of some age relaxation may be possible, mandatory qualifications cannot be dispensed with. Regularization of Shiksha Mitras as teachers was not permissible. In view of this legal position, our answers are obvious. We do not find any error in the view taken by the High Court. 26. Question now is whether in absence of any right in favour of Shiksha Mitras, they are entitled to any other relief or preference. In the peculiar facts situation, they ought to be given opportunity to be considered for recruitment. If they have acquired or they now acquire the requisite qualification in terms of advertisements for recruitment for next two consecutive recruitments. They may also be given suitable age relaxation and some weightage for their experience as may be decided by the concerned authority. Till they avail of this opportunity, the State is at liberty to continue them as Shiksha Mitras on same terms on which they were working prior to their absorption, if the State so decides.” 26. The present special appeal is also decided in terms of the decision rendered by the Hon’ble Apex court. Thus the present special appeal fails subject to the above directions as issued by the Hon’ble Apex Court.