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2023 DIGILAW 661 (UTT)

Neetu Pathak v. State of Uttarakhand

2023-12-06

MANOJ KUMAR TIWARI, VIVEK BHARTI SHARMA

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JUDGMENT : MANOJ KUMAR TIWARI, J. 1. Since common questions of law and fact are involved in these writ petitions, therefore are being taken up together and are being decided by this common judgment. However, for the sake of brevity, facts of Writ Petition (S/S) No. 574 of 2019 alone are being considered. 2. Petitioners possess B.Ed. qualification from different universities established by law. According to them, they are eligible for appointment as Assistant Teacher in Government Primary Schools run by State of Uttarakhand; however, their eligibility for appointment has been taken away by Rule 9 Column-2 of Uttarakhand Government Elementary Education School (Teachers) Service Rules, 2012, as amended in 2018. By Rule 9 Column-2, as amended in 2018, a condition was added in the Rules that, anyone who has scored less than 50% marks in graduation would not be eligible for appointment, however, for candidates belonging to Scheduled Castes and Scheduled Tribes community, the minimum qualifying marks in graduation was prescribed as 45%. 3. Petitioners have challenged the said condition on the ground that it is in contravention to notification issued by National Council for Teacher Education on 13.11.2019 and further that it is in conflict with the spirit and provisions of Right of Children to Free and Compulsory Education Act, 2009. Petitioners contended that the condition, which has been added through amendment, made in 2018, is in the teeth of judgment rendered by learned Single Judge of this Court in Writ Petition (S/S) No. 772 of 2011, Baldev Singh and Others vs. State of Uttarakhand and Others and also the judgment rendered by Hon’ble Supreme Court in the case of Neeraj Kumar Rai vs. State of Uttar Pradesh and Others in Civil Appeal No. 9732 of 2017. 4. Per contra, Mr. Yogesh Pacholia, learned counsel appearing for National Council for Teacher Education contends that the judgment rendered by learned Single Judge of this Court in the case of Baldev Singh (supra) was in respect of similar condition prescribed for participating in Teachers Eligibility Test and not for appointment as Assistant Teacher. He further contends that Hon’ble Supreme Court in a recent judgment rendered in the case of Devesh Sharma vs. Union of India, 2023 SCC Online SC 985 has held that B.Ed. qualification holders are not eligible for appointment as Assistant Teacher in Elementary/Primary Schools. Paragraph nos. 79 to 82 of the said judgment are extracted below: “79. He further contends that Hon’ble Supreme Court in a recent judgment rendered in the case of Devesh Sharma vs. Union of India, 2023 SCC Online SC 985 has held that B.Ed. qualification holders are not eligible for appointment as Assistant Teacher in Elementary/Primary Schools. Paragraph nos. 79 to 82 of the said judgment are extracted below: “79. In the present case and in the larger context of the matter, we cannot even see this as a policy decision. But without getting into this argument, even presuming for the sake of argument that the decision taken at the Government level to include B.Ed. as a qualification for teachers at primary level is a policy decision, we must say that this decision is not correct as it is contrary to the purpose of the Act. In fact, it goes against the letter and spirit of the Fundamental Right enshrined in the Constitution under Article 21A. It is against the specific mandate of the Act, which calls for a free, compulsory and meaningful primary education to children. By including B.Ed. as a qualification for teachers for primary school, the Central Government has acted against the provisions of the Constitution and the laws. The only logic given by the Central Government to include B.Ed. as a qualification is that it is a ‘higher qualification’. This we have already seen is not correct. Under these circumstances, we have no hesitation to say that the notification has rightly been quashed and the decision of the Division Bench of the Rajasthan High Court has to be upheld. 80. In our considered opinion therefore the direction of the Central Government dated 30.05.2018 culminating in the notification dated 28.06.2018 of NCTE are violative of the principles as laid down in RTE Act. Not only this, the notification goes against the purpose and the mandate of law, which is to provide a meaningful and ‘quality’ primary education to children. 81. The entire exercise is also procedurally flawed. The notification dated 28.06.2018 is not an independent decision of NCTE taken after due deliberation, but it simply follows the direction of the Central Government, a direction which fails to take into consideration the objective realities of the day. 82. Having made the above determination we, all the same, are also of the considered opinion that the State of Rajasthan was clearly in error in not calling for applications from B.Ed. 82. Having made the above determination we, all the same, are also of the considered opinion that the State of Rajasthan was clearly in error in not calling for applications from B.Ed. qualified candidates, for the reasons that till that time when such an advertisement was issued by the Rajasthan Government, B.Ed. candidates were included as eligible candidates as per the statutory notification of NCTE, which was binding on the Rajasthan Government, till it was declared illegal or unconstitutional by the Court. The Rajasthan High Court had rightly observed as under: “.....we are of the opinion that the State Government could not have ignored the notification while inviting applications for REET. Even if the State Government was of the opinion that such notification was unconstitutional or for any reason illegal, the same had to be stayed or set aside by a competent court before it could be ignored.” 5. It is not in dispute that petitioners in these writ petitions are seeking appointment as Assistant Teacher in Government Primary Schools on the strength of B.Ed. qualification and none of them possesses Diploma in Elementary Education and Diploma in Education, which makes a candidate eligible for appointment as teacher in a Primary/Elementary School. 6. Hon’ble Supreme Court in the aforesaid judgment has held that B.Ed. qualification alone is not sufficient for appointment as teacher in Elementary/Primary Schools. In view of the judgment rendered by Hon’ble Supreme Court, petitioners are not eligible for appointment in Basic/Primary/Elementary Schools, therefore, the challenge thrown to provision contained in Rule 9 Column-2 of Uttarakhand Government Elementary Education School (Teachers) Service Rules, 2012, as amended in 2018, becomes only academic in nature, and this Court refrains from going into the issues raised by petitioners in these writ petitions. 7. Accordingly, writ petitions fail and are dismissed. Interim order, if any, stands vacated.