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2023 DIGILAW 307 (UTT)

Pushpa v. State of Uttarakhand

2023-05-15

RAVINDRA MAITHANI, VIPIN SANGHI

body2023
JUDGMENT : Ravindra Maithani, J. Since common question of law is involved in all these cases, they are decided by this common judgment. 2. The core question, which falls for consideration in these matters is as to whether the State Government is under obligation to act, as per the notification dated 12.11.2014 issued by the National Council for Teacher Education (“the NCTE”), under Section 32 sub Section (2) clause (dd) read with Section 12A of the National Council for Teacher Education Act, 1993 (“the 1993 Act”) or the State Government may frame Rules contrary to the notification issued by the NCTE, prescribing minimum education qualifications for recruitment of teachers in schools. Special Appeals FACTS 3. Special Appeal Nos. 105 of 2022 and 78 of 2022 arise from common judgment dated 31.03.2022, passed in Writ Petition (S/S) No. 1211 of 2021, Om Prakash Gaur and another Vs. State of Uttarakhand and another and Writ Petition (S/S) No. 6 of 2022, Suman Lal and others Vs. State of Uttarakhand and others (“the petitions”). In the petitions, the petitioners have sought quashing of the press note dated 12.03.2021 issued by the Uttarakhand Subordinate Service Selection Commission (“Commission”) to the extent it permitted the non-B.Ed. candidates to apply for the post of Assistant Teacher, LT Grade (Arts), pursuant to the advertisement dated 13.10.2022, as also seeking directions that the Commission may be directed to conclude the selection process, as per the advertisement issued by it. 4. It has been the case of the petitioners that the Commission issued an advertisement on 13.10.2021, inviting applications for appointment to the post of Assistant Teacher, LT Grade, including Teachers, LT Grade (Arts). The last date for submission of the application form was 04.12.2020. But, in the midway, on 12.03.2021, the Commission issued a press release permitting the non-B.Ed. candidates also to apply for the post and the time for submission of the application forms was also extended. It is the case of the petitioners that once recruitment process has been initiated, such amendments in the Rules cannot be made. 5. The State as well as the Commission filed objections in the writ petitions. 6. According to the State, the Rules were amended and notified in the Official Gazette on 25.02.2021 by which the eligibility criteria for the post was changed and the requirement of B.Ed. was omitted. As per the Commission, the Rules were amended on 25.02.2021. 5. The State as well as the Commission filed objections in the writ petitions. 6. According to the State, the Rules were amended and notified in the Official Gazette on 25.02.2021 by which the eligibility criteria for the post was changed and the requirement of B.Ed. was omitted. As per the Commission, the Rules were amended on 25.02.2021. Therefore, amended qualification was included in the present selection process and pursuant to order dated 15.03.2021 of the Hon’ble Uttarakhand High Court passed in Writ Petition (PIL) No. 33 of 2021, Ravinder Jugran Vs. State and another, the time for submitting application was extended. 7. By the impugned judgment dated 31.03.2022, it was held that the impugned notification is not bad in the eyes of law. It was held that the candidates, who participated in the examination process cannot subsequently claim that the process was unfair; the press release did not take away the eligibility of any candidate from participating in the process; it has not prejudiced their interests; the rights of the petitioners were never crystallised and it cannot be said that equal opportunity was not given to such candidates, who could not apply earlier. The judgment dated 31.03.2022 passed by the learned Single Judge has been impugned in these special appeals. Writ Petitions 8. In the Writ Petition (S/S) Nos. 213 of 2022 and 671 of 2022, the validity of Uttarakhand Subordinate (Trained Graduate Category) (Amendment) Service Rules, 2021 (“the 2021 Amendment”) has been put to challenge. It is the case of the petitioners that, the 2021 Amendment is not in consonance with the 1993 Act and the National Council for Teacher Education (Determination of Minimum Qualifications For Persons to be Recruited as Education Teachers and Physical Education Teachers in Pre Primary, Primary, Upper Primary, Secondary and Senior Secondary or Intermediate Schools or Colleges) Regulations, 2014 (“2014 Regulations”), therefore, they are illegal. The petitioners have also sought directions for quashing the press release dated 12.03.2021 issued by the Commission with the directions to the Commission to continue with the process as per the advertisement dated 13.10.2022, strictly, in accordance with the 2014 Regulations. 9. In its counter affidavit, the State of Uttarakhand has, in fact, not responded to the questions raised by the petitioners. 9. In its counter affidavit, the State of Uttarakhand has, in fact, not responded to the questions raised by the petitioners. It has been the case of the State that the appointments are made under the provisions of the Uttarakhand Subordinate Education (Trained Graduate Grade) Service Rules, 2014 (“the State Service Rules 2014”) as amended in the year 2019. These Rules were further amended on 25.02.2021. Pursuant to the amendment dated 25.02.2021, the Commission issued a press note dated 12.03.2021. It has further been the case of the State that, Para 5 of 2014 Regulations, which is related to the power to relax, is not applicable in the instant matter for the simple reason that the Para 5(b) of the notification dated 23.8.2010 issued by NCTE specifically states that for Art Education, Craft Education, Home Science, Work Education etc., the existing eligibility norms prescribed by the State Government and the other school managements shall be applicable until such time the NCTE lays down the minimum qualification in respect of such teachers. According to the State, in the instant matter the NCTE has not prescribed the minimum eligibility criteria for the post of LT Grade (Arts), therefore, the State Government invoking the power given under Para 5(b) of the notification dated 23.8.2010, amended the Rules and thereby the minimum requirement of having B.Ed. had been deleted from the minimum qualifications. 10. In its short counter affidavit, it has been the stand of NCTE that for recruiting Assistant Teachers (Arts), NCTE has not prescribed any qualification. In para 6 of the counter affidavit, filed on 25.02.2023 by Ms. Deepti Swaroop, Regional Director, NRC, NCTE, following is stated:- “That with regard to the qualification of recruitment of Assistant Teachers for Arts in Drawing and Painting/Drawing Design/Technical Arts/Painting (Fine Art)/(Painting) (Visual Art), it is to state that NCTE has not prescribed any qualification in this regard. As per Regulation 5 (b) of the NCTE Notification No. F.No. 61-1/2011/NCTE(N&S) dated 29.07.2011, for teachers of Art Education, Craft Education, Home Science, Work Education, etc. the existing eligibility norms prescribed by the State Governments and other school managements shall be applicable till such time the NCTE lays down the minimum qualifications in respect of such teachers. As per Regulation 5 (b) of the NCTE Notification No. F.No. 61-1/2011/NCTE(N&S) dated 29.07.2011, for teachers of Art Education, Craft Education, Home Science, Work Education, etc. the existing eligibility norms prescribed by the State Governments and other school managements shall be applicable till such time the NCTE lays down the minimum qualifications in respect of such teachers. The copy of the notification is attached with this counter affidavit as ANNEXURE A. The NCTE, with the above averments, is filing this counter affidavit, same may kindly be taken on record and take appropriate decision in the present matter to resolve the controversy.” 11. The Commission in its affidavit simply states that the eligibility criteria and qualification has been fixed by various departments concerned. In the instant matter, according to the Commission, Rules were amended by the State Government, which were just made applicable by the Commission at the time of selection. 12. The NCTE had made reference to the 2010 Notification, therefore, on 22.03.2023, this Court sought a specific affidavit from NCTE on the following points:- “(i) The Notification dated 23.08.2010, which was subsequently amended by the Notification dated 29.07.2011 by the NCTE under the 2009 Act prescribes minimum qualification for a person to be appointed as a teacher in Classes I to VIII. How could these Notifications prescribe minimum qualification for a person to be eligible for appointment as a teacher in Secondary/High School (Classes IX & X)? (ii) Why the minimum qualification as prescribed in 2014 Regulations, framed under 1993 Act, shall not be made applicable for recruiting teachers in Secondary/High School (Classes IX & X)?” 13. In compliance thereof, an affidavit dated 27.04.2023 has been filed by Anjani Kumar, Director, NRC NCTE. Para 5 of it, is as hereunder : “That in 2014 the NCTE issued the NCTE Determination of Minimum Qualification for Persons to be recruited as Education Teachers and Physical Education Teachers in Pre-primary, Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges) Regulations, 2014 notified on 12.11.2014 as amended from time to time laying down the qualification from Pre-Primary to Senior Secondary/Intermediate (XII). The NCTE Notification dated 23.08.2010 is also an integral part of the Notification dated 12.11.2014 for minimum qualification for classes I to VIII. The notification dated 12.11.2014 provides the following qualifications for education teachers for classes IX to X....................................................................................... ......................................................................................... ......................................................................................... The NCTE Notification dated 23.08.2010 is also an integral part of the Notification dated 12.11.2014 for minimum qualification for classes I to VIII. The notification dated 12.11.2014 provides the following qualifications for education teachers for classes IX to X....................................................................................... ......................................................................................... ......................................................................................... In the aforesaid regulation, there exists no separate post of Lecturer of Art Education for Classes IX & X. ......................................................................................... ........................................................................................” ARGUMENTS 14. Learned counsel for the writ petitioners would submit that the 2021 Amendment made by the State of Uttarakhand is contrary to 2014 Regulations notified on 12.11.2014 by the NCTE under the 1993 Act. Therefore, it is illegal and deserves to be declared as such. 15. It is also submitted that after publication of the advertisement, change in the Rules cannot be made and if any such change in the Rules is introduced, it cannot be made applicable to the ongoing recruitment process. 16. In support of his contention learned counsel has placed reliance on the principles of law, as laid down in the case of State of Bihar and others vs. Mithilesh Kumar, (2010) 13 SCC 467 . 17. In the case of Mithilesh Kumar (supra), the Hon’ble Supreme Court observed as hereunder:- “19. Both the learned Single Judge as also the Division Bench rightly held that the change in the norms of recruitment could be applied prospectively and could not affect those who had been selected for being recommended for appointment after following the norms as were in place at the time when the selection process was commenced. The respondent had been selected for recommendation to be appointed as Assistant Instructor in accordance with the existing norms. Before he could be appointed or even considered for appointment, the norms of recruitment were altered to the prejudice of the respondent. The question is whether those altered norms will apply to the respondent. 20. The decisions which have been cited on behalf of the respondent have clearly explained the law with regard to the applicability of the rules which are amended and/or altered during the selection process. They all say in one voice that the norms or rules as existing on the date when the process of selection begins will control such selection and any alteration to such norms would not affect the continuing process, unless specifically the same were given retrospective effect.” 18. They all say in one voice that the norms or rules as existing on the date when the process of selection begins will control such selection and any alteration to such norms would not affect the continuing process, unless specifically the same were given retrospective effect.” 18. After filing the response affidavit, on 27.04.2023 by the NCTE, the learned State counsel admits that the State Government should not have amended the State Service Rules, 2014 by way of 2021 Amendment. Learned counsel would also submit that, the State Government shall conduct examination as per the NCTE Regulations. 19. On behalf of the intervener, Mr. U.K. Uniyal would submit that in paras 4, 5 and 6 of the counter affidavit filed on 25.02.2023 by Ms. Deepti Swarrop, Regional Director, NRC, NCTE, the NCTE has clarified that the qualification for Arts teachers has not been prescribed by the NCTE, therefore, the qualification prescribed by the State shall be applicable in the instant matter. It is also submitted that the petitioner had joined the entire recruitment process. After the release of the answer keys, they apprehended that, they may not be successful, therefore, the claims were made. Mr. Abhijay Negi, would submit that there are other communications of the NCTE prescribing minimum educational qualification. In case, State proposes to conduct the examination in consonance with NCTE notifications, it should also take into consideration such directions and notifications of the NCTE. He would also submit that the State Government should be directed to expedite the process of recruitment, which is pending for a long now. 20. Learned counsel appearing for the Commission would submit that the dispute is with regard to the recruitment to the post of Assistant Teacher, LT (Arts). Therefore, recruitment process for the post of Assistant Teacher, LT Grade other than Arts may be allowed to continue. 21. Mr. Rajesh Joshi, learned counsel appearing for the intervener, would submit that a candidate, who possessed educational qualification for appointment as a teacher in LT Grade as per the State Service Rules, 2014 should also be allowed to participate in the selection process. DISCUSSION & CONCLUSION 22. Factual narration in a chronology may help to better appreciate the controversy. It is as follows:- (i) On 19.02.2014, the State Service Rules, 2014, were promulgated by the State of Uttarakhand prescribing minimum eligibility criteria for recruitment of teachers. DISCUSSION & CONCLUSION 22. Factual narration in a chronology may help to better appreciate the controversy. It is as follows:- (i) On 19.02.2014, the State Service Rules, 2014, were promulgated by the State of Uttarakhand prescribing minimum eligibility criteria for recruitment of teachers. (ii) On 12.11.2014, the 2014 Regulations were notified by the NCTE prescribing minimum qualification, for recruitment of teachers in schools. For appointment of teachers in Secondary/High School (for Classes IX and X) educational qualification is as follows:- 4. Secondary/High School (For classes IX-X) (a) Graduate/Post Graduate from recognized university with at least 50% marks in either graduation or post graduation (or its equivalent) and bachelor of Education (B.Ed.) from National Council for Teacher Education recognized institution) (iii) On 23.12.2019, the State of Uttarakhand made amendment in the State Service Rules, 2014 in consonance with 2014 Regulations. The minimum educational qualification for the teacher LT Grade has been changed as follows:- (1) Graduate degree in Drawing and Painting/Fine Art (painting)/Visual Art (painting) from any University established by the law in India. (2) Degree of B.Ed. from any Government or Government recognized training institution/college. Or Degree of BA.Ed of minimum four years in the subject of Arts from any institution recognized from National Council for Teachers Education. (iv) On 13.10.2020, the Commission issued an advertisement inviting applications for appointment of Assistant Teacher, LT Grade including Assistant Teacher, LT (Arts). The last date for submission of the application was 04.12.2022. (v) On 25.02.2021, by the 2021 Amendment, the State of Uttarakhand further amended the State Service Rules, 2014, thereby omitting the requirement of B.Ed. for the posts. The eligibility was changed as follows: (1) Graduate degree in Drawing and Painting/Drawing design/Technical Art/Paining (Fine Art)/Painting (Visual Art) from any University established by the law in India. Note:- The above subject is compulsory in all years/semester of graduation. Or Degree of BA.Ed. of minimum four years in the subject of Arts from any institution recognized from National Teachers Education Council. (vi) On 15.03.2021, in the Writ Petition (PIL) no. 33 of 2021, the Division Bench of this Court had extended the time for submitting the application form till 25.03.2021. (vii) On 12.03.2021, the Commission issued a press release extending the time for submitting application form, as also inviting applications for appointment to the post of Assistant Teacher, LT Grade (Arts) from such candidates, who are non-B.Ed. 33 of 2021, the Division Bench of this Court had extended the time for submitting the application form till 25.03.2021. (vii) On 12.03.2021, the Commission issued a press release extending the time for submitting application form, as also inviting applications for appointment to the post of Assistant Teacher, LT Grade (Arts) from such candidates, who are non-B.Ed. (viii) Writ Petitions were filed, in which on 31.03.2022, the impugned judgment was passed which is impugned in the special appeals. (ix) Separate Writ Petitions (S/S) No. 213 of 2022 and 631 of 2022 have been preferred for quashing the 2021 Amendments and related reliefs. 23. Minimum qualifications of teachers at different levels of schools were laid down by the NCTE under the 1993 Act. In exercise of power conferred under Clause (dd) of sub Section (2) of Section 32 read with Section 12 A of the 1993 Act, the NCTE had framed the 2014 Regulations. The first schedule of 2014 Regulations provides for minimum educational qualifications for persons eligible for appointment as a Teacher in Pre-school/Nursery Primary and Upper Primary (from Classes I to VII) and Secondary/High School ( IX and X). 24. In order to provide free and compulsory education to all children of the age from 6 to 14 years, the Right of Children to Free and Compulsory Education Act, 2009 (“the 2009 Act”) was enacted. Section 23 of the 2009 Act, provides that the minimum qualifications for appointment of Teachers shall be laid down by an Academic Authority, authorized by the Central Government by a notification. In furtherance of the provisions of the 2009 Act, the NCTE issued notification dated 23.08.2010 prescribing minimum educational qualifications for a person to be eligible for appointment as a Teacher from Class I to VIII. Subsequently, this notification dated 23.08.2010 was further amended in the year 2011 by a notification dated 29.07.2011. 25. The area which is governed by the 2009 Act, is quite distinct than the area which is governed by the 1993 Act. It is under those circumstances, that the Court on 22.03.2023 required the NCTE to file an affidavit on the pointed query. In para 5 of its affidavit, dated 27.04.2023 again, on behalf of the NCTE, it is reiterated that the NCTE Notification dated 23.08.2010 is also an integral part of the Notification dated 12.11.2014. 26. It is under those circumstances, that the Court on 22.03.2023 required the NCTE to file an affidavit on the pointed query. In para 5 of its affidavit, dated 27.04.2023 again, on behalf of the NCTE, it is reiterated that the NCTE Notification dated 23.08.2010 is also an integral part of the Notification dated 12.11.2014. 26. During the course of argument, learned counsel for the NCTE would give a statement that, for appointment of the Teachers in Secondary/High School (Classes IX and X), the 2014 Regulations, as framed under the 1993 Act, are applicable. He would submit that the notification issued under the 2009 Act, will not govern the field. 27. Learned State counsel would submit that in the State of Uttarakhand, Class VI to Class X is one cadre, that is LT cadre. He would submit that for appointment of Teachers in Classes VI to VIII, B. Ed. is not a necessary qualification. By this analogy, the minimum qualification which is prescribed by 2014 Regulations, does not become redundant. 28. If the NCTE, under statutory command prescribes a minimum qualification for teachers to be appointed in Classes IX and X, such a qualification would still continue. Those teachers may also be eligible to teach in Classes VI to VIII. They may not be said to be ineligible for appointment as a teacher for Classes VI to VIII. But if B.Ed. is not a qualification for appointment of teachers for Classes VI to VIII, such Teachers, who are non B.Ed. cannot be appointed as teachers for Classes IX and X and as such, they cannot teach in Classes IX and X. 29. The core question which falls for consideration in the instant matter has already been answered by the Hon’ble Supreme Court in the case of State of Uttar Pradesh and others Vs. Shiv Kumar Pathak and others, (2018) 12 SCC 595, wherein the Hon’ble Supreme Court held that the qualifications prescribed by the NCTE are binding. In para 17 of the judgment, the Hon’ble Supreme Court observed as hereunder:- “17. There is no manner of doubt that NCTE, acting, as an “academic authority” under Section 23 of the RTE Act, under the Notification dated 31-3-2010 issued by the Central Government as well as under Sections 12 and 12-A of the NCTE Act, was competent to issue Notifications dated 23-8-2010 and 11-2-2011. There is no manner of doubt that NCTE, acting, as an “academic authority” under Section 23 of the RTE Act, under the Notification dated 31-3-2010 issued by the Central Government as well as under Sections 12 and 12-A of the NCTE Act, was competent to issue Notifications dated 23-8-2010 and 11-2-2011. The State Government was under obligation to act as per the said notifications and not to give effect to any contrary rule...........................................................................................................................................................................” 30. In the instant case, after promulgation of 2014 Regulations, the State of Uttarakhand had amended the State Service Rules, 2014 on 23.12.2019. Uptil that stage, the State had acted as per statutory mandate. The minimum qualifications for a Teacher were prescribed as per the NCTE notifications. But thereafter, the amendments which were made on 25.02.2021 are in contravention to the minimum educational qualifications prescribed by the NCTE Regulations, 2014. Therefore, this amendment is illegal and it deserves to be struck down. 31. In the impugned order dated 31.03.2022, the aspect of prejudice and rights of the candidates have also been examined. If the State Service Rules, 2014 are in contravention to the statutory provisions, it makes no difference, as to whether, any prejudice is caused to anyone or not. If the Rules are illegal, and not in accordance with law, the prejudice and other aspect loses their significance. 32. In view of the foregoing discussions, this Court is of the view that the Amendments which were made on 25.02.2021, in the State Service Rules, 2014 are liable to be struck down being in contravention to the minimum educational qualifications prescribed by the NCTE Regulations, 2014. Accordingly, Special Appeals and the writ petitions deserve to be allowed. 33. The Special appeals and the writ petitions are allowed. 34. The amendments carried out on 25.02.2021 in the State Service Rules, 2014 are struck down being in contravention to the minimum educational qualifications prescribed by the NCTE Regulations, 2014. 35. The respondent no.1 is directed to initiate the process of recruitment afresh, without any delay, in accordance with the applicable rules, regulations and guidelines.