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2017 DIGILAW 497 (UTT)

HARISH CHAND v. STATE OF UTTARAKHAND

2017-09-13

SUDHANSHU DHULIA

body2017
JUDGMENT Hon'ble Sudhanshu Dhulia, J. (Oral) The petitioner before this Court is a graduate in Commerce and has qualifications which include two year Diploma in Elementary Education from a Government Institute from Delhi, known as State Council of Education Research and Training, which is recognized by National Council for Teachers Education (from hereinafter referred to as the “N.C.T.E"). In the present writ petition, he has primarily challenged Rule 9 (A) (ii) of Uttarakhand Government Elementary Education School (Teachers) Service Rules, 2012 of Uttarakhand, by which one of the mandatory qualifications for selection and appointment for the post of Primary School Teacher is that a candidate must have done his two years of Diploma in Elementary Education, which is known as Basic Teaching Certificate (i.e. B.T.C.) in Uttarakhand, from one of the thirteen training centres in Uttarakhand alone. In other words, two years of Diploma in Elementary Education from an other institute which is outside these 13 District Centres of Uttarakhand (irrespective of that institute being recognized by the Central Government), is not a proper qualification for a teacher in elementary education in Uttarakhand! This provision has been challenged, inter alia, on ground of it being violative of Article 14 of the Constitution of India. 2. By the 42nd Amendment of the Constitution of India, education was omitted from the State List and inserted in the Concurrent List of the Seventh Schedule of the Constitution of India. Thereafter vide 86th Amendment of the Constitution of India Article 21-A was inserted in Part III of the Constitution of India as one of the Fundamental Rights i.e. Right to 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." 3. It took seven years for the Parliament to finally bring a legislation on this, which is known as the “Right of Children to Free and Compulsory Education Act, 2009" (from hereinafter referred to as the Act). The Act, in substance, prescribes the manner in which the free and compulsory education in India has to become a reality, which is now the Fundamental Right enshrined in Part III of the Constitution of India. The Act, in substance, prescribes the manner in which the free and compulsory education in India has to become a reality, which is now the Fundamental Right enshrined in Part III of the Constitution of India. The Act is an extremely important piece of legislation, which seeks implementation of the mandate of the Constitution by not only making free and compulsory education a reality but by making elementary education a quality education in India. This is the principal focus of the Act. 4. Section 23 of the Act prescribes the manner in which teachers are to be appointed in elementary schools, their qualifications and terms and conditions of service. Section 23 of the Act reads as follows:- “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 provided) 5. In short, therefore, the detail procedure as to the qualification of such teachers who will impart education in elementary school was to be laid down by an “Academic Authority", which is authorized by the Central Government by a Notification. It is again an admitted fact that subsequently the Central Government vide Notification dated 31.03.2010 has appointed the N.C.T.E., as the “Academic Authority" to lay down the qualifications for elementary school teachers in the country. N.C.T.E. in turn issued a Notification on 23.08.2010, inter alia, laying down the qualification of teachers for elementary education. It is again an admitted fact that subsequently the Central Government vide Notification dated 31.03.2010 has appointed the N.C.T.E., as the “Academic Authority" to lay down the qualifications for elementary school teachers in the country. N.C.T.E. in turn issued a Notification on 23.08.2010, inter alia, laying down the qualification of teachers for elementary education. Since presently we are only concerned with the qualifications as regarding teachers imparting education in primary education i.e. elementary education (from Class I to Class V), we would limit our discussion to that part of the Notification only which relates to qualification of teachers for primary education i.e. Class I to Class V. The qualifications as laid down in the Notification for appointment of teachers for Class I to Class V read as under:- “(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." 6. As we can see, one of the essential qualifications for a teacher in Primary School is two year Diploma in Elementary Education “by whatever name known" [This is so because the Diploma in known by different names in different States. In Uttarakhand it is known as BTC (Basic Teaching Certificate)] in accordance with the N.C.T.E. (Recognition Norms and Procedure), Regulations 2002. Admittedly, in Uttarakhand, this two year Diploma in Elementary Education is known as Basic Training Certificate or, in other words, B.T.C. 7. The challenge before this Court is to the Rules, made subsequently, by the State of Uttarakhand under Article 309 of the Constitution of India known as Uttarakhand Government Elementary Education School (Teachers) Service Rules, 2012. Admittedly, in Uttarakhand, this two year Diploma in Elementary Education is known as Basic Training Certificate or, in other words, B.T.C. 7. The challenge before this Court is to the Rules, made subsequently, by the State of Uttarakhand under Article 309 of the Constitution of India known as Uttarakhand Government Elementary Education School (Teachers) Service Rules, 2012. By these Rules, inter alia, the essential qualification for a teacher in elementary school is a two year Diploma in elementary education i.e. B.T.C. from any of the 13 State Education Centres known as District Institute of Education and Training (for short, D.I.E.T.) in Uttarakhand. In other words, anyone who has obtained a two year Diploma from any institute other than these thirteen D.I.E.Ts. within or outside the State of Uttarakhand, is not considered to be “qualified", under the Rules for appointment as Primary School Teacher in Uttarakhand. It is this part of the Rules, which is presently under challenge, being contrary to the Central notification by N.C.T.E., dated 23.08.2010, referred above. 8. At this juncture, it must be stated that this is the second round of litigation, for the petitioner, as earlier the petitioner had filed Writ Petition (S/S) No. 534 of 2016 challenging the selection process initiated by the State Government wherein applications were invited only fromB.Ed. qualified candidates and not from the candidates having two year Diploma in Elementary Education. The petitioner admittedly even at that time had done his two year Diploma in Elementary Education not from one of the thirteen D.I.E.Ts., as prescribed under the Rules in Uttarakhand but admittedly from an institute in Delhi, though a recognized Institute. 9. This Court had at that stage come to a conclusion that the essential qualification for appointment as Primary Teacher in elementary school is two year Diploma in Elementary Education and not B.Ed., and the relaxation (to B.Ed. qualified candidates) is only for a limited period of time, which would not mean that the candidates having essential qualification of two year Diploma in Elementary Education should be debarred from the selection process. The writ petition was allowed by this Court vide judgment and order dated 13.05.2016 and the selection process was set aside and the State Government was directed to initiate fresh selection process in accordance with the qualification as given in the Notification of N.C.T.E. dated 23.08.2010. The writ petition was allowed by this Court vide judgment and order dated 13.05.2016 and the selection process was set aside and the State Government was directed to initiate fresh selection process in accordance with the qualification as given in the Notification of N.C.T.E. dated 23.08.2010. The reference here is of Writ Petition No. 534 (S/S) of 2016 decided on 13.05.2016. 10. The order passed by this Court was challenged by the State Government as well as some private candidates in Special Appeals. The Special Appeals were allowed, inter alia, on ground that there was no specific challenge to the Rules and there was no pleading on this aspect. However, liberty was kept open to the petitioner to challenge the Rules at the appropriate time. Now, the petitioner by means of present writ petition has challenged the validity of the Rule 9 (A) (ii) of the Uttarakhand Government Elementary Education School (Teachers) Service Rules, 2012. The reference here is of order dated 14.07.2016 in Special Appeal No. 173 of 2016. 11. Thereafter, the Government had issued fresh advertisement through District Education Officer on various dates in August, 2016, such as, advertisement for district Udham Singh Nagar was issued on 04.08.2016and for district Nainital the advertisement was issued on 20.08.2016 inviting applications from eligible candidates who were permanent residents of the district. The petitioner has not done his two year Diploma in Elementary Education from any of the 13 institutions of the State of Uttarakhand and therefore not liable to be considered as a teacher. He has hence challenged the said Rules before this Court as well as the present selection process. 12. The counter affidavit filed on behalf of the State, which has been sworn by the Additional Chief Secretary, School Education, Government of Uttarakhand, states that he has already received the Draft Amendment by the Directorate of Elementary Education by which Rules are to be amended and new qualification has to be added, and “a permanent resident of Uttarakhand", even though he has done two year Diploma from a recognized institute from outside 13 D.I.E.Ts. of Uttarakhand will be considered to be eligible for the district of which he is a permanent resident. The necessary qualification, however, even under the Draft Rule is that the qualification of a candidate will be considered only if he is a permanent resident of Uttarakhand. of Uttarakhand will be considered to be eligible for the district of which he is a permanent resident. The necessary qualification, however, even under the Draft Rule is that the qualification of a candidate will be considered only if he is a permanent resident of Uttarakhand. All the same, since, these are only in the nature of Draft Rules, no reliance can beplaced on this. 13. It is again an admitted position that as of now the Rules, which are under challenge are still in force and any person who has done Diploma from outside the 13 D.I.E.Ts. is not considered to be eligible for appointment as Primary School Teacher in Uttarakhand. The challenge to the said Rule is on the ground that the said Rule is in violation of Article 14 of the Constitution of India. A challenge to the vires of statutory Rules is open on very limited grounds as there is always a presumption on the validity of the Rules. Such a challenge can only be valid if the Legislature was not competent to legislate on the subject or the Rules being violative of Fundamental Rights, or violative of any provisions of the Constitution of India. 14. Let us deal with the legislative competence first. 15. As we have already seen, Section 23 of the Right to Education Act delegates the power to the Central Government to appoint an “Academic Authority", which isnow to lay down the qualifications for elementary school teachers in the country. Consequently, the Academic Authority, which is N.C.T.E. has laid down these qualification vide its Notification dated 23.08.2010 and as we have already noticed, one of the essential qualifications declared by the Academic Authority i.e. N.C.T.E. is that a candidate must possess two year Diploma in Elementary Education, which is recognized by the N.C.T.E., by whatever name. This Diploma is known by different names in different State. In Uttar Pradesh and Uttarakhand, it is known as B.T.C. i.e. Basic Teachers Certificate. The Notification dated 23.08.2010 says the qualification is “two years of Diploma in Elementary Education (by whatever name it is known)". This Diploma is known by different names in different State. In Uttar Pradesh and Uttarakhand, it is known as B.T.C. i.e. Basic Teachers Certificate. The Notification dated 23.08.2010 says the qualification is “two years of Diploma in Elementary Education (by whatever name it is known)". This is significant, as what is important is that there should be a two years Diploma in Elementary Education from anywhere in the country i.e. from any State or Union Territory, as long as it is recognized by N.C.T.E. In any case, Notification dated 23.08.2010 does not say two years of Diploma from that State alone where appointments are to be made. It does not limit or restrict that a Diploma which a candidate has done must be from a State where he is seeking job of teacher. This is not what the N.C.T.E. prescribes in its Regulations. 16. The qualification prescribed by the State Government vide Rule 9 (A) (ii) of the Uttarakhand Government Elementary Education School (Teachers) Service Rules, 2012, whereby a candidate who has done two year Diploma from one of its institute in the 13 districts only (Uttarakhand has 13 districts and each of the district has one Government Institution known as District Institute of Education and Training i.e. D.I.E.T. in the State), will be considered qualified and a candidate who has done his two year Diploma from outside these 13 institutes or from outside the State will not be considered as qualified, is totally inconsistent rather repugnant to the Notification of the N.C.T.E. dated 23.08.2010 and to that extent of this repugnancy Rule 9 (A) (ii) of the Uttarakhand Government Elementary Education School (Teachers) Service Rules, 2012 is liable to be declared as void. 17. At this stage, a short background to the Right of Children to Free and Compulsory Education needs to be stated. By means of 86th Amendment to the Constitution of India, Article 21-A was inserted in Part IIIof the Constitution of India making free and compulsory education of children between 6 to 14 years of age a fundamental right. Article 21-A reads as under: “Section 21A. 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 be, by law, determine." 18. Article 21-A reads as under: “Section 21A. 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 be, by law, determine." 18. Consequently, the Parliament passed the Right of Children to Free and Compulsory Education Act, 2009, which lays down in detail as to how free and compulsory elementary education to all the children of the age of 6 to 14 years in the entire country has to be implemented. The Act seeks to make free and compulsory education not just a formality but make a meaningful education! It is for this reason that only qualified teachers are to henceforth impart education in such elementary school and, therefore, Section 23 of the Act of 2009 states as to how the qualifications for appointment and terms and conditions of service of teachers have to be made. Section 23 of the Act reads as under: “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 notifications: 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 provided) 19. Sub-Section (1) of Section 23 clearly states that only such a person shall be deemed to be qualified, who fulfils the qualifications laid down by the Academic Authority which is authorized by the Central Government by way of a notification. (emphasis provided) 19. Sub-Section (1) of Section 23 clearly states that only such a person shall be deemed to be qualified, who fulfils the qualifications laid down by the Academic Authority which is authorized by the Central Government by way of a notification. In other words, the Parliamentary Legislation i.e. the Right of Children to Free and Compulsory Education Act, 2009 clearly stipulates as towho shall be considered to be qualified as a teacher in an elementary school in India, only a person having the minimum qualifications as laid down by the designated Academic Authority (under sub-section (1) of Section 23 of the Act) shall be considered to be a qualified teacher. 20. Now, undoubtedly “education", which was earlier in List II of the Seventh Schedule i.e. State List was taken out from the State List and was inserted in List III i.e. the Concurrent List by way of 42nd Amendment to the Constitution of India. Item No. 25 of the Concurrent List reads as under: “25. Education, including technical education, medial education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour." 21. Under clause (2) of Article 256 of the Constitution of India, both the Parliament as well as the Legislature of any State have got powers to make laws with respect to any of the matters enumerated in List III of the Seventh Schedule, which is the Concurrent List. Article 254 of the Constitution of India lays down that in case of any inconsistency between the laws made by the Parliament and the laws made by the Legislature of the State, the laws made by the Parliament shall prevail and the law made by the State to the extent of repugnancy be void, unless the Legislature of a State under clause (2) of Article 254 has received the assent of the President of India on such a law. 22. Read with the above provisions of law, since the inconsistency before this Court is not between the two statutes i.e. one made by the Parliament and other made by the State Legislature, but inconsistency is rather between two executive orders made under Article 162 of the Constitution of India (though the two executive orders have statutory force), yet this has to be seen also in the light of Article 162 of the Constitution of India. Article 162 of the Constitution of India reads as under: “162. Extent of executive power of State. – Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by the Parliament upon the Union or authorities thereof." 23. The language of Article 162 of the Constitution of India shows that in case of an inconsistency between two executive orders, even though they have statutory force (as in the present case), the examination would have to be slightly different. The matter before this Court has to be examined primarily under the powers of the State Executive in the light of Article 162 of the Constitution of India. 24. Article 162 of the Constitution of India states that executive power of a State shall extend to the matters with respect to which the Legislature of a State has power to make laws, provided where the Legislature of a State as well as Parliament both have powers to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by the Parliament upon the Union or authorities thereof. Therefore, in the present case, we have to strictly examine as to the limits of executive powers conferred by the Parliamentary Legislation i.e. Section 23 of the Right to Education Act. 25. The language of Section 23 of the Right to Education Act is absolutely clear. The qualification for elementary school teachers shall henceforth be only made by an Academic Authority authorized by the Central Government by way of a notification. Admittedly, this authority by way of notification by the Central Government is the N.C.T.E. As we have already discussed above, no other authority can lay down any qualifications, certainly no such qualification which is inconsistent or repugnant to the qualifications laid down by the NCTE, can be valid. 26. Admittedly, this authority by way of notification by the Central Government is the N.C.T.E. As we have already discussed above, no other authority can lay down any qualifications, certainly no such qualification which is inconsistent or repugnant to the qualifications laid down by the NCTE, can be valid. 26. In the light of the above discussions, we find that the qualifications which have been laid down under the Rules of the State, do not prescribe a higher qualification to the minimum qualification prescribed by the N.C.T.E. under Section 23 of the Act read by its Notification dated 23.08.2010, as that would have been a different situation inasmuch as a valid argument of the State could have been that what has been prescribed by the Centre is the minimum and the State can always raise standards and prescribe a higher qualification. In the present case, however, the qualification is entirely different, rather inconsistent with what has been prescribed by the N.C.T.E. The N.C.T.E. prescribes two years of Diploma in Elementary Education by whatever name it is known, whereas the State Government limits such a qualification to two years of Diploma in Elementary Education which a person has done from one of the thirteen institutions of the Government of Uttarakhand alone. In other words, Diploma in Elementary Education even if it is recognized by the Central Government or N.C.T.E. stands disqualified in Uttarakhand. It is a considered opinion of this Court that to this limited extent, the qualification as laid down by the Government of Uttarakhand for two years diploma in elementary education, is repugnant to the qualifications as laid down by the N.C.T.E. 27. It is a settled position of law that in case of repugnancy, only one provision can prevail and, therefore, in the present case the provision which would prevail is the provision as laid down by the N.C.T.E. vide its Notification dated 23.08.2010 i.e. two years Diploma in Elementary Education which is recognized by the N.C.T.E. To that extent the writ petition is liable to be allowed. 28. Consequently, Rule 9 (A) (ii) of the Uttarakhand Government Elementary Education School (Teachers) Service Rules, 2012 which prescribes the qualification of Diploma in elementary education only from any of 13 D.I.E.Ts. of the State of Uttarakhand shall not be read as qualification. 28. Consequently, Rule 9 (A) (ii) of the Uttarakhand Government Elementary Education School (Teachers) Service Rules, 2012 which prescribes the qualification of Diploma in elementary education only from any of 13 D.I.E.Ts. of the State of Uttarakhand shall not be read as qualification. It is made clear that what will continue to operate as the essential qualification here will be what has been laid down by the N.C.T.E. in its Notification dated 23.08.2010, which is two year Diploma in Elementary Education from any recognized institution anywhere in the country. 29. All the same, the second prayer of the petitioner which is for quashing of the advertisement although cannot be granted at this stage as this Court has been informed that the selection process has already been completed and required candidates have already been selected and appointed. However, considering that the petitioner stands to be qualified, a further mandamus is hereby issued to consider the candidature of the petitioner treating him to be qualified on the basis of his two years Diploma in Elementary Education, which he has obtained from outside the State. The State must examine the certificate of the petitioner and all the qualifications and if they are in order, grant him appointment order forthwith. It is made clear that the appointment of the petitioner shall also be from the same date as is given to those candidates who have been selected in the selection process. It is further made clear that the petitioner shall get the salary from the date he joins an institution and shall not be entitled for backwages. 30. In the light of the discussions and observations made above, writ petition stands allowed.