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2023 DIGILAW 747 (PAT)

Ajay Kumar v. State of Bihar

2023-07-11

K.VINOD CHANDRAN, PARTHA SARTHY

body2023
K. Vinod Chandran, CJ. – Petitioners herein are guest teachers appointed to the Higher Secondary Schools in the State who challenge the Bihar State School Teacher (Appointment, Transfer, Disciplinary Proceedings and Service Conditions) Rules, 2023. The challenge is raised on three grounds. The first the State Government having provided for qualifying in Teacher Eligibility Test (TET) conducted by the State Government or the Central Government for the purpose of appointment as Higher Secondary School Teachers; which is against the prescription in the Regulations of the National Council for Teacher Education (for brevity “NCTE”). There is no relaxation of maximum age permitted for guest teachers and there is no preference conceded to them; who were appointed after conducting a proper selection wherein reservation was also made applicable. 2. We heard learned Senior Counsel Shri. Y.V. Giri for the petitioners and the learned Advocate General Shri P.K. Shahi for the respondent State. 3. Learned Senior Counsel referred to the qualifications prescribed by the NCTE as seen from Annexure-6 which does not mandate qualification in the TET conducted by the State or the Central Government. It is argued that the Regulation is brought out under the National Council for Teacher Education Act, 1993 and the State Government cannot vary from the prescriptions in the Regulations. It is contended that this would result in repugnancy insofar as the prescription of the State running against the statutory regulations prescribed by an apex academic body, under the law brought in by the Union Parliament. Reliance is placed on Forum for People's Collective Efforts (FPCE) & Anr. vs. State of West Bengal and Another; (2021) 8 SCC 599 and Innoventive Industries Ltd. vs. ICICI Bank & Anr.; (2018) 1 SCC 407 to buttress this contention. As far as the primacy of the NCTE and the regulations brought out by the said academic body, reliance is placed on Maa Vaishno Devi Mahila Mahavidyalaya vs. State of U.P. and others; (2013) 2 SCC 617 . 4. At the outset, it is to be stated that the averments in the memorandum of writ petition itself indicates that the appointments of the petitioners, guest teachers, were to continue only till regular appointments were made against the sanctioned and vacant posts. Having accepted such an appointment, there cannot be any contention raised for preference or regularization in the sanctioned posts. Having accepted such an appointment, there cannot be any contention raised for preference or regularization in the sanctioned posts. It is the exclusive premise of the State Government to make appointments in accordance with the NCTE regulations and also the stipulations brought in by the State. Insofar as the relaxation in age is concerned, we specifically notice Rule 5(v) which prescribes the minimum and maximum age. Though the minimum age for appointment to the Senior Secondary School is indicated as 21 years on the 1st of August of any year, the maximum age is as notified by the State Government from time to time. The Rule itself provides for relaxation of 10 years in the upper age limit in the first transaction of appointment after the Rules come into force, to such trained candidates who have qualified the TET prior to enactment of these Rules. The guest teachers cannot claim any further relaxation of age merely for reason of they having been appointed as guest teachers in the various schools; without satisfying the eligibility criteria. 5. Now we come to the contention of the State Government having impinged upon the powers of the Union Parliament. The notification relied on by the petitioners, Annexure-6, was issued under Section 32 (2) (dd) read with Section 12A of the NCTE Act, 1993. Section 32 is the power to make regulations and Clause (dd) of sub-section (2) speaks of the qualifications of teachers under Section 12A. Section 12A is the power of the NCTE to determine the minimum qualification of persons for being recruited as teachers, by regulations, for the purpose of maintaining standards of education in schools. In fact, the nominal heading of Section 12A speaks of the power of the Council to determine minimum standards of education of school teachers. 6. The decision in Maa Vaishno Devi Mahila Mahavidyalaya is with respect to affiliation of educational institutions with Universities. It was held that NCTE is the authority constituted under the Central Act whose opinion, is of utmost importance and takes precedence over the views of the State, as well as that of the University. While conceding that the Department of the State concerned and the affiliating University has a role to play, it was stated to be limited in its application. While conceding that the Department of the State concerned and the affiliating University has a role to play, it was stated to be limited in its application. It was held that the State or the University could not lay down any guideline which would be in conflict with the prescription laid down by the Central body. Affiliation, which was the subject matter of the said decision, is regulated by Section 16 which is a non obstante clause which prohibits any examining body to grant affiliation on or after the appointed date unless the institution concerned has obtained recognition from the regional committee concerned under Section 14 for admission to the course of training, under Section 15. The primacy of the NCTE which comes out from Section 14, 15 and 16 of the NCTE Act is quite distinct from that coming out under Section 12A which confers power on the NCTE to determine minimum standards of education. It is trite that when minimum standards are determined by an apex academic body, then there shall be no dilution of the prescription, but however, the affiliated bodies and the State Government would be entitled to prescribe a higher qualification which does not result in the minimum standards prescribed being reduced or diluted. 7. Ambesh Kumar (Dr.) vs. Principal, L.L.R.M. Medical College, Meerut & Ors.; (1986) Supp 543 was concerned with the stringent prescription of medical graduates being entitled to apply for post-graduation and post-graduate diploma only on securing 55% or 52% in the graduate examination. The prescription was challenged on the ground of encroaching upon the field occupied by the Medical Council of India (MCI) Regulations, brought out under Entry 66 of List I of the Seventh Schedule of the Constitution of India. The prescription of the State was upheld and the Government order was sustained, despite the rigor having resulted in many seats in various disciplines, at the post-graduate level, having remained vacant, the consequence of faculty members being maintained in excess of the teacher-student ratio. It was held that the State Government’s order was a valid executive action under Entry 25 of List III, which does not impinge upon the field occupied by Entry 66 of List I. 8. Dr. It was held that the State Government’s order was a valid executive action under Entry 25 of List III, which does not impinge upon the field occupied by Entry 66 of List I. 8. Dr. Preeti Srivastava and another vs. State of M.P and others; (1999) 7 SCC 120 noticed Entry 25 of List III and Entry 66 of List I of Seventh Schedule of the Constitution of India and held so in Pragaraphs 35, 36 and 39, which are extracted hereunder: – “35. The legislative competence of Parliament and the legislatures of the States to make laws under Article 246 is regulated by the VIIth Schedule to the Constitution. In the VIIth Schedule as originally in force, Entry 11 of List II gave to the State an exclusive power to legislate on “education including universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III”. Entry 11 of List II was deleted and Entry 25 of List III was amended with effect from 3-1-1976 as a result of the Constitution 42nd Amendment Act of 1976. The present Entry 25 in the Concurrent List is as follows: “25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.” Entry 25 is subject, inter alia, to Entry 66 of List I. Entry 66 of List I is as follows: “66. Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions.” Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977, education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254.” 36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. Some of these are: (1) the calibre of the teaching staff; (2) a proper syllabus designed to achieve a high level of education in the given span of time; (3) the student-teacher ratio; (4) the ratio between the students and the hospital beds available to each student; (5) the calibre of the students admitted to the institution; (6) equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges; (7) adequate accommodation for the college and the attached hospital; and (8) the standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged. xxx xxxx xxx 39. The respondents have emphasised the observation that admission has to be made by those who are in control of the colleges. But, the question is, on what basis? Admissions must be made on a basis which is consistent with the standards laid down by a statute or regulation framed by the Central Government in the exercise of its powers under Entry 66 List I. At times, in some of the judgments, the words “eligibility” and “qualification” have been used interchangeably, and in some cases a distinction has been made between the two words – “eligibility” connoting the minimum criteria for selection that may be laid down by the University Act or any Central statute, while “qualifications” connoting the additional norms laid down by the colleges or by the State. In every case the minimum standards as laid down by the Central statute or under it, have to be complied with by the State while making admissions. It may, in addition, lay down other additional norms for admission or regulate admissions in the exercise of its powers under Entry 25 List III in a manner not inconsistent with or in a manner which does not dilute the criteria so laid down.” 9. The Constitution Bench decision in Dr. Preeti Srivastava was followed in Maharashtra University of Health Sciences vs. Paryani Mukesh Jawaharlal and Ors.; (2007) 10 SCC 201 , Visveswaraiah Techonological University and Anr. The Constitution Bench decision in Dr. Preeti Srivastava was followed in Maharashtra University of Health Sciences vs. Paryani Mukesh Jawaharlal and Ors.; (2007) 10 SCC 201 , Visveswaraiah Techonological University and Anr. vs. Kirshnendu Halder and Ors.; (2011) 4 SCC 606 and State of T.N. and Another vs. S.V. Bratheep (Minor) and Ors.; (2004) 4 SCC 513 . 10. In the instant case also the specific prescription of eligibility in the notification under challenge, is educational and training qualification for appointment to the post of school teacher, as determined by the NCTE from time to time. The qualifications in TET conducted by the State Government/Central Government from time to time is an additional qualification insisted upon by the State. It can by no stretch of imagination be considered to be a standard prescribed for diluting the minimum standards nor does it in any manner affect the quality of the teachers. 11. On the above reasoning, we are of the opinion, there is no ground to interfere with the Rules of 2023 and the qualifications prescribed therein. We reject the interim prayer sought for.