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2019 DIGILAW 223 (UTT)

Pratap Singh Bora v. State of Uttarakhand

2019-03-19

MANOJ K.TIWARI

body2019
JUDGMENT : 1. Heard learned counsel for the parties. 2. Since common questions of fact and law are involved in these petitions, therefore all these petitions are clubbed together and are being heard & decided by a common judgment. However, for the sake of convenience, facts of WPSS No. 3340 of 2018 are being considered. 3. Petitioners, in this bunch of writ petitions, are aggrieved by notification dated 28.06.2018 issued by National Council for Teachers Education (for short ‘N.C.T.E.’) whereby a condition has been inserted that candidates, who have scored at least 50% marks in graduation, alone would be eligible to participate in Uttarakhand Teachers Eligibility Test-I & II (hereinafter referred as “UTET-I & UTET-II). 4. Right to Education was declared to be a Fundamental Right by inserting Article 21(A) by the Constitution (Eighty-Sixth Amendment) Act 2002. Subsequently, Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred as the “R.T.E. Act”) was enacted by the Union Parliament. Section 23(1) of the R.T.E. Act is extracted below:- “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.” 5. In exercise of powers under Section 23(1) of the R.T.E. Act, 2009, Central Government issued a notification on 31.03.2010, whereby N.C.T.E. was appointed as Nodal Agency. Thereafter, N.C.T.E. issued notification dated 23.08.2010 providing inter alia that, for appointment as Teacher in a School where instructions are imparted from class I to V and class VI to VIII, no person would be eligible unless he has qualified a Teachers Eligibility Test and is a graduate with 50% marks and holds a B.Ed. degree. Subsequently, N.C.T.E. issued guidelines pursuant to the notification dated 23.08.2010, whereby it was provided that, only such candidates, who have passed graduation with minimum 50% marks alone, would be eligible to appear in U.T.E.T.-I & U.T.E.T.-II. The said condition imposed by N.C.T.E. was challenged by candidates, who were otherwise qualified for appointment as Teacher. A coordinate Bench of this Court vide judgment dated 20.08.2011 rendered in the case of Baldev Singh and others Vs. State of Uttarakhand and others declared the condition of having minimum percentage of marks in graduation, as unjust and violative of Article 14 of the Constitution. A coordinate Bench of this Court vide judgment dated 20.08.2011 rendered in the case of Baldev Singh and others Vs. State of Uttarakhand and others declared the condition of having minimum percentage of marks in graduation, as unjust and violative of Article 14 of the Constitution. Operative portion of the said judgment is extracted below:- “However, even assuming for the sake of argument that the above decision of the Hon’ble Rajasthan High Court does not help the case of the petitioners, yet this Court is of a considered view, as it has already been discussed in the preceding paragraphs, that such a restriction (of having minimum percentage in graduation) is both unreasonable, unjust and violative of Article 14 of the Constitution of India. Therefore, this Court declares such condition of asking a minimum percentage of marks in graduation from those candidates who are B.Ed. qualified in NCTE notification dated 23.8.2010 and subsequent State Government Order dated 29.4.2011 as violative of Article 14 of the Constitution of India. Further this Court directs the respondents to permit the petitioners to appear in TET examination treating them to be qualified under Clause 3 of the notification dated 23.8.2010 and State Government Order dated 29.4.2011.” 6. Learned counsel for the petitioners submits that the judgment rendered in the case of Baldev Singh (Supra) was challenged by N.C.T.E. by filing a Special Appeal, which too has been dismissed by a Division Bench of this Court. 7. Learned counsel for the petitioners further submits that the aforesaid condition was challenged before a Division Bench of Hon’ble Rajasthan High Court and a statement was made on behalf of the N.C.T.E. that its notification shall not be enforced against such candidates, who have passed graduation prior to the date of issuance of the notification. They further submit that the said condition was unsuccessfully challenged before Hon’ble Allahabad High Court by the candidates, who were denied participation in T.E.T., on the ground that they had scored less than 50% marks in graduation. The judgment rendered by Hon’ble Allahabad High Court was challenged before Hon’ble Supreme Court by Neeraj Kumar Rai and others and Hon’ble Supreme Court in its judgment dated 25.07.2017 rendered in Civil Appeal No. 9732 of 2017 (Neeraj Kumar Rai and others Vs. State of Uttar Pradesh and others) took note of the stand taken by the N.C.T.E. before Hon’ble Rajasthan High Court. Paragraph nos. State of Uttar Pradesh and others) took note of the stand taken by the N.C.T.E. before Hon’ble Rajasthan High Court. Paragraph nos. 7, 8 and 9 of the said judgment is extracted below: “7. Again, similar issue was raised before the High Court of Uttarakhand in Writ Petition No. 772(SS) of 2011 etc. titled Baldev Singh and ors. versus State of Uttarakhand and ors. The High Court in its judgment dated 20th August, 2011, after noticing the observations in the Rajasthan High Court judgment, observed: “Apparently therefore the restriction of a minimum percentage of marks in graduation (45% or 50% as the case might be) is not going to be enforced by NCTE, as it is evident from the above paragraph, as these were the instructions of the Regional Director, NCTE to its counsel before the Hon’ble Rajasthan High Court. The counsel representing NCTE Mr. Sudhir Singh has fairly submitted before this Court that he also gets his instructions from the same Regional Director, NCTE, yet there are no such instructions with him. That being the factual position, we leave it at that. However, even assuming for the sake of argument that the above decision of the Hon’ble Rajasthan High Court does not help the case of the petitioners, yet this Court is of a considered view, as it has already been discussed in the preceding paragraphs, that such a restriction (of having minimum percentage in graduation) is both unreasonable, unjust and violative of Article 14 of the Constitution of India. Therefore, this Court declares such condition of asking a minimum percentage of marks in graduation from those candidates who are B.Ed. qualified in NCTE notification dated 23.8.2010 and subsequent State Government Order dated 29.4.2011 as violative of Article 14 of the Constitution of India. Further this Court directs the respondents to permit the petitioners to appear in TET examination treating them to be qualified under Clause 3 of the notification dated 23.8.2010 and State Government Order dated 29.4.2011.” 8. Mr. AS Nadkarni, learned Additional Solicitor General, appearing for the NCTE fairly stated that the appellants may be treated at par with those covered by the Rajasthan and Uttarakhand High Courts judgments which have been accepted by the NCTE. 9. Mr. AS Nadkarni, learned Additional Solicitor General, appearing for the NCTE fairly stated that the appellants may be treated at par with those covered by the Rajasthan and Uttarakhand High Courts judgments which have been accepted by the NCTE. 9. In view of fair stand of learned Additional Solicitor General and the view of Rajasthan and Uttarakhand High Courts, we do not find any reason to deny similar relief to the appellants. No doubt, as rightly held by the High Court the NCTE ought to have issued a clarification by way of a supplementary notification but the NCTE may now do so within one month from today. Accordingly, we direct that if the appellants or any other similarly placed persons are entitled to any further relief in terms of judgments of Rajasthan and Uttarakhand High Courts, they will be at liberty to put forward their claim before the concerned authorities who may take a decision thereon in accordance with law within one month. We have not examined any such claim in these proceedings except what has been stated hereinabove.” 8. Learned counsel for the petitioners further submits that similar controversy regarding participation in U.T.E.T.-II, which is required for appointment as Teacher in the schools imparting instructions from Class-VI to Class-VIII, was decided by a Division Bench of this Court vide judgment dated 06.09.2018 rendered in Special Appeal No. 473 of 2013. 9. Mr. Yogesh Pacholia, learned counsel appearing for N.C.T.E., on instructions and based on the judgment rendered by Hon’ble Supreme Court in the case of Neeraj Kumar Rai (supra), submits that the condition inserted vide notification dated 28.06.2018 issued by N.C.T.E. shall not be attracted to such candidates, who have passed their graduation before date of issuance of the said notification. The stand taken by N.C.T.E. is quite reasonable, and in consonance with the law laid down by Hon’ble Supreme Court in paragraph no. 113 of the judgment rendered in the case of D.G. of Foreign Trade Vs. Kanak Exports reported in (2016) 2 SCC 226 . 10. Mr. N.S. Negi, Advocate appearing for Uttarakhand Vidyalayi Shiksha Parishad submits that his client has simply enforced the notification issued by N.C.T.E. He adopted the submissions made on behalf of N.C.T.E. 11. 113 of the judgment rendered in the case of D.G. of Foreign Trade Vs. Kanak Exports reported in (2016) 2 SCC 226 . 10. Mr. N.S. Negi, Advocate appearing for Uttarakhand Vidyalayi Shiksha Parishad submits that his client has simply enforced the notification issued by N.C.T.E. He adopted the submissions made on behalf of N.C.T.E. 11. This Court has been informed that all the petitioners have participated in U.T.E.T.-I & U.T.E.T.-II on the strength of interim orders passed in these writ petitions, therefore, the petitioners have prayed that their result may be declared. Learned counsel for the petitioners submit that all the petitioners have passed their graduation before 28.06.2018. If that is so, there cannot be any legal impediment in declaring the result of the petitioners, in view of the stand taken by N.C.T.E. in these petitions. 12. Accordingly, the writ petitions are disposed of with a direction to the examining body i.e. Uttarakhand Vidyalayi Shiksha Parishad to declare the result of those petitioners, who have passed graduation before 28.06.2018. 13 It is reported that last date of submission of application for appointment as Teacher is 23.03.2019, therefore, Uttarakhand Vidyalayi Shiksha Parishad is requested to upload the result of the petitioners, who have passed graduation before 28.06.2018, on its website within 24 hours. 14. Let a copy of this order be placed in all the connected writ petitions. 15. Let a certified copy of this order be issued today itself.