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2018 DIGILAW 228 (UTT)

State of Uttarakhand v. Harish Chand

2018-04-27

K.M.JOSEPH, SHARAD KUMAR SHARMA

body2018
JUDGMENT : K.M. JOSEPH, J. This appeal is filed by the respondents in the writ petition. The writ petitioner (respondent No. 1) approached the learned Single Judge setting-up the following case in brief : Writ petitioner possesses two years’ Diploma Course in Elementary Teacher Education with TET qualification. It appears that there was an earlier round of litigation, which, ultimately, culminated in judgment in Special Appeal No. 173 of 2016 leaving it free to the writ petitioner to challenge the condition. The condition was inserted by virtue of Rule 9(Ka)(ii) and Rule 15(i) of the Uttarakhand Government Elementary Education School (Teachers) Service Rules, 2012 (hereinafter referred to as the “2012 Rules”) and Rule 9(ka)(ii) as amended by Uttarakhand Government Elementary Education School (Teachers) Service (Amendment) Rules, 2013 dated 20.07.2013. By virtue of the impugned Rules, the condition was imposed that, to be qualified, a person must obtain two years’ Diploma Course in Elementary Education from the concerned DIETs of the districts of Uttarakhand. Advertisements were issued on 04.08.2016 and 20.08.2016, wherein the same condition was imposed. It is, accordingly, that the Rules along with the amendment and the Advertisements came to be challenged. The writ petitioner also sought a direction that his application be accepted. 2. The learned Single Judge proceeded to consider the matter. He adverted to Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the “Right to Education Act”); besides Article 21-A of the Constitution, which declares right to education of children between 6 years and 14 years as fundamental right. The learned Single Judge noticed that NCTE, which is a notified authority under Section 23 of the Right to Education Act, has laid down the qualifications inter alia, namely, two years’ Diploma in Elementary Education by whatever name called in accordance with the NCTE (Recognition Norms and Procedure) Regulations, 2002. In the State of Uttarakhand, this qualification is known as Basic Training Certificate or BTC. The writ petitioner has obtained the Diploma from outside the State of Uttarakhand. The learned Single Judge proceeded to consider the matter from the point of view of the division of powers between the Union and the State. He adverted to “education” as contained in Entry 25 of List III to the Seventh Schedule to the Constitution. Thereafter, he referred to Article 254 of the Constitution. The learned Single Judge proceeded to consider the matter from the point of view of the division of powers between the Union and the State. He adverted to “education” as contained in Entry 25 of List III to the Seventh Schedule to the Constitution. Thereafter, he referred to Article 254 of the Constitution. Thereafter, the learned Single Judge has proceeded to lay down that the inconsistency is not between two statutes; but, inconsistency is between two executive orders and reference is made to Article 162. Thereafter, it is provided as follows : “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.” 3. We do not see how there is occasion for referring to Article 162 of the Constitution. There is no executive order passed by the State. We may not be inclined to agree with the said aspect of the matter; but, the following is the finding we notice in paragraphs 26 & 27 of the judgment : “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.” 4. After hearing the learned counsel for the parties, we see no reason to interfere. In fact, nothing is urged before us for us to be persuaded to take a different view from that which has been taken by the learned Single Judge. NCTE is a body under Section 23 of the Right to Education Act. It has laid down qualifications. There is no requirement in the qualifications, which have been prescribed, that the same should be one, which is obtained only from institutions in the State. As long as it is recognised by NCTE, it may not be open to the State to stipulate, by its Rules, that only the qualifications obtained from the State alone will be accepted. The learned Single Judge has noticed that this is not a case, where a higher qualification is fixed. In such circumstances, it may not be open to the State to stipulate for the matter as provided. Therefore, on this basis, we see no reason to interfere. 5. The appeal will stand dismissed. No order as to costs.