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2024 DIGILAW 288 (PAT)

Bibi Sakina Khatoon v. Union of India

2024-03-20

ASHUTOSH KUMAR, K.VINOD CHANDRAN, RAJIV ROY

body2024
K. Vinod Chandran, CJ. – Unqualified and untrained teachers are the bane of any system of education, in which, the students; often celebrated as the citizens of tomorrow, wallow in ignorance and get mired in misinformation, thus, stultifying the development and growth of a Nation State. Quite realizing the importance of a robust educational system; for maintaining and upgrading the teaching standards, with a vision to strengthen the social fabric of democracy and further the Directive Principles of State Policy, the crucial role of elementary education was emphasized by the Union Parliament in enacting the Right of Children to Free And Compulsory Education Act, 2009 (‘RTE Act’, in abbreviation), mandating free and compulsory education to all children up to the age of 14 years. 2. The statement of objects and reasons indicate that despite numerical expansion of elementary schools, the goal of universal elementary education eludes us as a Nation, also by reason of the ever increasing drop-outs from the disadvantaged and weaker sections; which prompted the subject enactment, aimed at enabling full time elementary education to every child, as a matter of right, expanding the horizons of equal opportunities. The need to provide quality teaching was emphasized in the enactment, which provision; under challenge in the writ petitions, mandates appointment only of such qualified teachers, while providing a short hiatus insofar as enabling appointment of even those unqualified and untrained, at the same time ensuring that they do acquire such qualification and training in the interregnum. The provision, requiring enhancement of the standards of teaching, required those teachers in place, also to enhance and upgrade their capabilities by acquiring the teacher’s training qualification, within the time provided. 3. The writ petitions challenge the proviso under Section 23 of the RTE Act which provided a further period of four years after the initial hiatus of five years, on grounds of it being arbitrary, illegal and manifestly wrong. The petitioners assert that the proviso introduced abruptly extinguished the right of those appointed, who were not able to get a training qualification in the interregnum; either on account of their own default or on the disinclination of the State to provide sufficient opportunities to acquire such training. The petitioners assert that the proviso introduced abruptly extinguished the right of those appointed, who were not able to get a training qualification in the interregnum; either on account of their own default or on the disinclination of the State to provide sufficient opportunities to acquire such training. Immediately we have to notice that the rigor brought in, was by Section 23 (1) and sub-section (2) only provided a conditional engagement, the proviso of which required attainment of the required qualification within the initial period itself; which has not been challenged. The challenge is to a proviso introduced subsequently providing a further period for attaining the qualification. That proviso, relaxed the rigor of the earlier requirement and if interfered with, would only result in persons who obtained the training qualification after the initial five years also being terminated. 4. The appeals which are tagged along with the writ petitions, or rather vice versa, are from the judgment of a learned Single Judge which considered a batch of writ petitions in which the teachers, who were sent out of employment for having not acquired the training qualification challenged their termination. As was done by the learned Single Judge, we desist from looking at the individual facts since the interpretation of Section 23 and the second proviso introduced later, would bring a quietus to the issues raised and this would have to be applied across the board in considering the right of continuance as claimed by the individual petitioners/appellants. 5. There are too many advocates appearing to be named individually but we reckon the presence of learned Senior Counsel Sri Y.V. Giri, Sri Mrigank Mauli and Sri Basant Chaudhary, who led the arguments on behalf of the petitioners/appellants. Sri P. K. Shahi, learned Advocate General, appeared for the State and Dr. K. N. Singh, learned Additional Solicitor General, appeared for the Union of India. 6. The petitioners vehemently argued on the injustice in terminating teachers who had been appointed after a selection process and continued for long. It is argued that many of the appointees were not provided with leave and an opportunity to acquire the required qualification. The State also did not have adequate training institutions to carry out the teachers training course and with the meagre facilities, the time provided was grossly insufficient. It is argued that many of the appointees were not provided with leave and an opportunity to acquire the required qualification. The State also did not have adequate training institutions to carry out the teachers training course and with the meagre facilities, the time provided was grossly insufficient. It is also pointed out that there were different categories, as the learned Single Judge found, whose training was in different stages and they should have been allowed to complete it. There are teachers who failed in some subjects in the duration of the course, but the institutes provide them with two or three supplementary chances to again appear in the exams. Then, the National Institute of Open Schools (NIOS, for short) had a minimum eligibility criterion of 50% for the intermediate exams, which was the essential basic qualification; later waived and relaxed. Again, there are teachers appointed on compassionate grounds who cannot be terminated at all. Further, the learned Single Judge erred in so far as holding that even teachers who qualified later to the time provided or in whose cases the certificates were not issued, to be treated as fresh appointments from their date of qualification or issuance of certificate. This would erase the entire service put in by them of long years. It is prayed that this Court extend the time for acquiring the qualification since the State Government is not averse to the continuance of the teachers. 7. The learned Advocate General submitted that the State Government has no role, insofar as the termination being a statutory compulsion. Even if the State Government is desirous of continuing the unqualified teachers, it is impossible by reason of the statutory rigor which the State cannot disobey. Insofar as no opportunity being given, the learned Advocate General specifically pointed out Annexure-G produced in L.P.A. No.748 of 2022, wherein the Education Department, Bihar, Patna, had specifically referred to the online course of diploma in elementary education, with a duration of eighteen months, through NIOS for untrained primary teachers working in all primary schools imparting education from class 1-8. Hence, acquisition of qualification did not depend on the opportunity given by the Government and the teachers had to, by themselves enroll in the course and acquire such qualification. The State has now proceeded to appoint teachers with the essential qualification and the selection process is almost complete. Hence, acquisition of qualification did not depend on the opportunity given by the Government and the teachers had to, by themselves enroll in the course and acquire such qualification. The State has now proceeded to appoint teachers with the essential qualification and the selection process is almost complete. There are enough qualified hands who can be appointed to the vacancies, as of now. 8. Learned Additional Solicitor General vehemently pointed out from the statement of objects and reasons that the laudable intention was to spruce up the standards of education, which cannot be frustrated on mere grounds taken of deprivation of livelihood. The unqualified teachers, who continued in employment after 01.04.2010 and those who were appointed during the relaxation period were quite aware of their responsibility to acquire the qualification; failing which they would, by their own act or deliberate omission, dis-entitle themselves from continuing in employment. A long rope was given to the teachers; more than nine years, for the purpose of acquiring the training qualification, the course duration of which was just 18 months; one and a half years. There can be no claim raised at this distance of time, that they were deprived of a fair opportunity or that they should be given optional choices, time and again, for appearing in the supplementary examinations or that they should be now sent for training courses. No interpretative exercise can frustrate the object of the statute, asserts the Additional Solicitor General. 9. Before we look at the interpretation, we would briefly refer to the judgment of the learned Single Judge. The learned Single Judge classified the writ petitions and the petitioners therein into 7 categories, teachers; (a) who opted for training after 31.03.2019, (b) who applied for training and registered with NIOS but did not qualify as on 31.03.2019; (c) who completed training but no certificate was issued till 31.03.2019, (d) again, those who completed training but results not declared as on 31.03.2019, (e) Indira Gandhi National Open University (for brevity ‘IGNOU’) qualified but who could not carry out the bridge course of 6 months, (f) who completed training but results withheld and (g) persons disqualified from acquiring the qualification under the NIOS for reason of their having not obtained 50% in the intermediate examination; which was the basic requirement as per the NIOS. Here we have to notice that the date spoken of as 31.03.2019, is the date on which the learned Single Judge deemed the hiatus of 5 years plus the extended period of another 4 years, concluded; the Right of Children to Free and Compulsory Education Act, 2009 (for brevity ‘RTE’) having come into force on 01.04.2010. 10. The learned Single Judge by the impugned judgment considered the categories separately and at times together. Category (a) was found to be comprised of untrained teachers appointed by the Panchayats and appointed on compassionate grounds. By virtue of Bihar Panchayat Elementary Teachers (Employment and Service Conditions) Rules 2012, Regulation 15 clause (d), they were to complete their training within a period of 6 years. The teachers who were comprised in the said group were found to have qualified the diploma in education conducted by the NIOS; but not so qualified as on 31.03.2019. A few of the concerned teachers were persons, who had acquired B.Ed. or Diploma in Elementary Education from other recognized institutions after 31.03.2019. Looking at Section 23, it was held that those persons who stood qualified after the cut-off date of 31.03.2019, were not qualified, in conformity with the provisions of the RTE Act and hence, were to be treated as freshly appointed from the date on which they had acquired the qualification. Those who had failed and had not acquired the training will have to be terminated. Categories (b) and (f) were persons who had completed training but had either not obtained the certificate or their results were withheld as on 31.03.2019. The contention taken on behalf of them was that the certificates having not been issued and the results being withheld; it was not a default on the part of the teachers. Some results were withheld for reason of the candidates having not been enabled to be admitted to training courses for reason of failing to have obtained 50% in the intermediate examinations. It was argued that the said requirement was already relaxed by the NIOS and those who had completed the course before 31.03.2019 and their results were either withheld or certificates not issued were deemed to have obtained the training qualification as on 31.03.2019 and they were directed to be continued. However, those persons who had not concluded their training course on 31.03.2019, were held to be in-eligible to hold the posts. However, those persons who had not concluded their training course on 31.03.2019, were held to be in-eligible to hold the posts. Category (c) were persons who had completed training but not issued certificate till 31.03.2019. It was held that even if the certificate is issued after 31.03.2019, they would be treated as eligible in terms of the amendment of 2017 since they had completed their course and written their examinations prior to that date. 11. Category (d) were persons whose examinations were not conducted up to 31.03.2019, who were found to be ineligible to be considered for continuance even if there was a delay in conducting the examination. No benefit can accrue to them on that basis, since there is no estoppel against the statute, was the finding. Category (e) were persons who had qualified the training course from IGNOU, which acquires the character of a minimum qualification only if a six-month bridge course is completed, as had been required by the National Council of Teacher Education (for brevity, ‘NCTE’). It was directed that the bridge course would be carried out by the State Government immediately and that as and when the bridge course is cleared, he or she would be reinstated in service and though there would be entitlement for continuance of service during the interregnum, no salary would be paid on the principle of ‘no work no pay’. Category (g) were persons who did not have 50% marks at the intermediate examinations, who were treated as persons entitled to be continued on the certificate being issued or results being declared but only from the date of such issuance. As far as the ‘other’ categories referred to in (h), the State Government was directed to consider the same, in accordance with the principles laid down, on the interpretation of Section 23 of the RTE Act. 12. The appellants challenged the said judgment as having been erroneously decided in certain points. At the outset, it was contended that the teachers did not have the option to enroll for the training course and unless the Government permitted it, they could not have done so by themselves. 12. The appellants challenged the said judgment as having been erroneously decided in certain points. At the outset, it was contended that the teachers did not have the option to enroll for the training course and unless the Government permitted it, they could not have done so by themselves. It is then argued that those who completed the courses and whose results were not declared or withheld or certificates not issued, were not responsible individually and hence, the decision to make their appointments prospective from the date of such issuance of certificate or declaration of results would be patently irregular. It was also argued that the various courses undertaken by the teachers, provided for appearing in supplementary examinations, if there was a failure at the first instance, some of the Institutions carrying on the training courses permitted three appearances and some others two. Any teacher who failed at the first attempt, should not be unceremoniously sent out of service and they should be given further opportunities and the provision under the RTE Act should be subject to such opportunities being offered to them. The sum and substance of the submissions of the petitioners was that dehors the cut-off date, all persons who have qualified at the time of judgment should have been allowed to be continued. Those whose results are declared and those whose certificates were issued even after the judgment, if such results and service relate back to the period before the judgment, they should be allowed to continue not as fresh appointments but as regularly appointed from the initial date of appointment, were entitled to continuity in service. There is also another prayer that those who had failed to qualify at the first attempt should be permitted to appear in supplementary examinations as provided by the Institution carrying on the training course or at least one more opportunity; which could be extended even now. As far as persons who were not sent for training by reason of the State having not permitted it, they should be given one more opportunity to attempt the training and on their qualifying be permitted to be continued in employment. 13. A Full Bench was constituted with three Judges by virtue of Order No.10 dated 18.09.2023 in the Letters Patent Appeals. 13. A Full Bench was constituted with three Judges by virtue of Order No.10 dated 18.09.2023 in the Letters Patent Appeals. The matter was referred to a larger Bench noticing the controversy as to the acquisition of diploma in elementary education; the minimum qualification for appointment of teachers in the primary schools as prescribed by the NCTE, having been answered by a Division Bench approving the impugned judgment. The Division Bench of this Court before whom the appeals and the writ petitions were posted found that a co-ordinate bench had dismissed one of the appeals from the common judgment of the learned Single Judge in L.P.A. No.744 of 2022. Therein, the petitioners were Panchayat teachers appointed in the year 2017 long after the relaxation, provided as per the first proviso to Section 23(2), expired. Though, various categories of teachers as classified by the learned Single Judge, were the appellants, it was opined that to have a quietus to the issue and also in the interest of judicial discipline, the matter be referred to a larger bench. 14. A three Judge Bench was constituted and on 28.11.2023, it was felt that there should be more clarity in the counter affidavit filed by the State, which did not have the details of the training program as also the opportunities given to the teachers for the purpose of appearing in the qualifying examinations. While directing the State to ensure that such a counter affidavit is placed on record, it was also directed that the future appointments made would be subject to the result of the analogous cases. The said order was issued only noticing the fact that the State had brought out Bihar State Schools Teachers (Appointments, Transfer, Disciplinary Proceedings and Service Conditions) Rules 2023, under which a notification was issued for appointment of more than 1,70,000 posts in the primary, secondary and senior secondary schools within the State. There was considerable progress in the said process and some appointments were made. But the process was still going on and there were remaining vacancies; far more than the number of petitioners and appellants herein. In fact, a challenge was made by the existing teachers to the new recruitment and an interim order was prayed for, to restrain the State from proceeding under the Rules of 2023, which was rejected by an interim order dated 04.07.2023 by another Division Bench. In fact, a challenge was made by the existing teachers to the new recruitment and an interim order was prayed for, to restrain the State from proceeding under the Rules of 2023, which was rejected by an interim order dated 04.07.2023 by another Division Bench. We are informed that the interim order was challenged before the Hon’ble Supreme Court without success. 15. As we noticed, we would first deal with the challenge against the second proviso as introduced by the Right of Children to Free and Compulsory Education (Amendment) Act, 2017. We deem it fit that we extract the entire provision under Section 23 which is as 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. (2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification: Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years: Provided further that every teacher appointed or in position as on the 31st March, 2015, who does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017.] (3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed.” 16. Sub-section (1) of Section 23 makes eligible for appointment, as a teacher in elementary schools, only a person possessing such minimum qualification as laid down by an academic authority authorized by the Central Government. Sub-section (1) of Section 23 makes eligible for appointment, as a teacher in elementary schools, only a person possessing such minimum qualification as laid down by an academic authority authorized by the Central Government. The Central Government has authorized the NCTE as the academic authority, by S.O. 750(E) dated 31.03.2010 which has prescribed the minimum teachers training qualification; a twoyear Diploma in Elementary Education (by whatever name known) (later reduced to 18 months) for appointment of a teacher in Class-I to V and a one year Bachelor in Education for appointment of a teacher in Class-VI to VIII. Sub-section (2) of Section 23 provides that when a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualification are not available in sufficient numbers, then, at the request of the State, the Central Government may relax the minimum qualification for such period not exceeding five years. The first proviso, also required a teacher who is in position, as a teacher, at the commencement of the RTE Act i.e. on 01.04.2010, if not possessing the minimum qualification as laid down under sub-section (1), should acquire such minimum qualification within a period of five years. This was the provision, minus the second proviso subsequently added, which was available at the time the enactment was brought into force. 17. The State of Bihar made a request by communication dated 01.03.2011 for grant of relaxation of the minimum qualification norms laid down by the NCTE in its notification published in the Gazette of India on 25.08.2010. Pursuant to the request made, the Government of India by notification S.O.1353(C), New Delhi dated 01.06.2011 permitted such relaxation, valid up to 31.03.2015, but subject to the condition that the Government of Bihar should conduct Teachers Eligibility Test (TET) in accordance with the guidelines of the NCTE dated 11.02.2011, and only those persons who pass the TET can be considered for appointment as teachers in elementary classes. The State Government and other school managements were also required to amend the recruitment rules to correspond with the minimum qualification norms laid down by the NCTE. The State Government was obliged to give priority to the eligible candidates having minimum qualification and only then apply the power of relaxation. 18. The State Government and other school managements were also required to amend the recruitment rules to correspond with the minimum qualification norms laid down by the NCTE. The State Government was obliged to give priority to the eligible candidates having minimum qualification and only then apply the power of relaxation. 18. It was also provided that the State Government and other school managements should ensure that teachers not possessing the minimum academic and professional qualifications as laid down in the notification of the NCTE, and appointed as per the relaxation, should acquire the same within the time limit provided under sub-section (2) of Section 23. The teachers who were appointed under the relaxed qualification norms were also obliged to acquire the minimum qualification specified in the NCTE notification within a period of two years from the year of appointment. The obligation on the State Government and other school managements, we observe, was insofar as the compliance of the provisions of the RTE Act and the teachers too, had equal onus or obligation to comply with the conditions and obtain the minimum qualification within the period provided under the RTE Act. There can be no claim raised against the State Government that sufficient opportunities were not granted or that enough training courses were not commenced within the State to enable continuation even without obtaining the minimum qualifications; which would be in violation of the provisions of the RTE Act. 19. We have to immediately notice one other notification issued by the Department of School Education; Ministry of Human Resource Development dated 13.04.2017 bearing S.O No. 1206-E. The Central Government in exercise of the powers conferred under Section-23(2) of the RTE Act granted a similar relaxation to the State Government of Assam for a period up to 31.03.2015 vide a notification dated 26.08.2011. A further request was made by the State Government of Assam for extension of the relaxation, especially pointing out that the recruitment process culminated in appointments, only in the year 2012 and 2013, which enabled only two years for achieving the target of obtaining minimum qualification, during the period of relaxation. The Central Government by the aforesaid notification granted further extension of one year four months and twenty-five days, which was stated to be the left over period of five years. The Central Government by the aforesaid notification granted further extension of one year four months and twenty-five days, which was stated to be the left over period of five years. Hence, the initial relaxation was deemed to be between 28.08.2011, the date of notification and 31.03.2015; three years seven months and five days. The notification of the Central Government granting relaxation insofar as the State of Bihar was dated 01.06.2011 and no further request was made. Hence, the persons who were appointed after relaxation of minimum qualification had to obtain the minimum qualification before 31.03.2015 or within two years of their appointment whichever date fell earlier as per notification S.O. 1353(E); specifically Note-1 (v) and (vi). 20. The cut-off date of 31.03.2015 passed, without any consequences arising on teachers and it was after about two years, that Act 24 of 2017 was promulgated; on 09.08.2017, which was the Right of Children to Free and Compulsory Education (Amendment) Act, 2017 (for short the Amendment Act of 2017). The Amendment Act specifically deemed it to have come into force on 01.04.2015. The amendment was only insofar as insertion of the second proviso to Section-23. The second proviso introduced, has two limbs that every teacher appointed or in position as on 31.03.2015, who does not possess minimum qualification as laid down under sub-section (1) should acquire such minimum qualification and that it has to be within a period of four years from the date of commencement of the Amendment Act. The first limb is insofar as obliging those teachers without minimum qualification in place as on 31.03.2015, to acquire such qualification within four years. The above provision would further clarify that there could be no appointment made of teachers based on the relaxation as granted by the Central Government under sub-section (2) of Section 23, after 31.03.2015. 21. We have to also pertinently observe that the statutory provision only enabled the Central Government to grant such relaxation for a maximum period of five years and not in excess of that. In the case of State of Bihar, the relaxation was up to 31.03.2015; a time lesser than the maximum, since the relaxation commenced only from 01.06.2011. There was no further relaxation granted for the remaining period, out of the maximum of 5 years under the RTE Act. In the case of State of Bihar, the relaxation was up to 31.03.2015; a time lesser than the maximum, since the relaxation commenced only from 01.06.2011. There was no further relaxation granted for the remaining period, out of the maximum of 5 years under the RTE Act. Hence, the statutory rigor of Section-23 came to be reinforced by insertion of the second proviso that no teachers appointed after 31.03.2015, who did not have minimum qualification, could be considered as a valid appointment; not even under the relaxed norms; the period of which had expired on that date. Such appointees cannot also be continued on any acquisition of qualification later to the date of appointment. 22. Now the question arises as to what is the period in which the qualification could have been acquired as is permitted by the second proviso to Section 23. We have noticed that the amendment was a retrospective one w.e.f. 31.03.2015. However, the four-year period was stated to be from the date of commencement of the Amendment Act, 2017. It is based on the date of effect of second proviso as provided in the Amendment Act, 2017 that the learned Single Judge found the period to be expiring as on 31.03.2019. 23. We notice that even the Central Government, the Ministry of Human Resource Development had deemed the period to be commencing from 31.03.2015 and ending on 31.03.2019. A D.O. letter no. 17-2017 was issued on 03.08.2017, which noticed the extension of period of such training to 31.03.2019, as has been passed by the Parliament. Here, we have to make a caveat that the Parliament had not specified 31.03.2019, as the date of expiry of the four year period and what comes out from the D.O. letter is only the opinion of the Executive Government. We reiterate, at the risk of repetition, that the Parliament had provided the period of four years from the commencement of the Amendment Act, 2017. 24. We are quite conscious of the legal-fiction employed by a deeming provision which leads to an assumption that something is true even though it may be untrue. We extract the oft quoted observation of Lord Radcliffe in St. Aubin vs. Attorney General (1951) 2 All ER 473: – “The word “deemed” is used a great deal in modern legislation. 24. We are quite conscious of the legal-fiction employed by a deeming provision which leads to an assumption that something is true even though it may be untrue. We extract the oft quoted observation of Lord Radcliffe in St. Aubin vs. Attorney General (1951) 2 All ER 473: – “The word “deemed” is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.” 25. We would also remind ourselves of the famous quote of Lord Asquith in Finsbury Borough Council’s Case, extracted hereinbelow: – “If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The statute says that you must imagine a certain state of affairs it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs”. 26. It is in this context that we have to consider the interpretation of the proviso especially in computing the period of four years within which the minimum qualification as prescribed by the NCTE has to be acquired by the teachers as on 31.03.2015. We also have to observe that the provision as available under Section 23(1) of the Act, as originally enacted, provided for relaxation upto five years, from minimum qualification, as notified by the Central Government at the request of the State Government. The notification which permitted relaxation required the minimum qualification, as provided under the Act and the notification of the relaxation, to be obtained by those who are appointed under the relaxed norms on or before 31.03.2015. The notification which permitted relaxation required the minimum qualification, as provided under the Act and the notification of the relaxation, to be obtained by those who are appointed under the relaxed norms on or before 31.03.2015. As we noticed, 31.03.2015 came and passed, and if the provision was to remain as such every teacher appointed prior to 01.04.2010, and those who were appointed as per relaxed norms up to 31.03.2015, who did not acquire the minimum qualification before 31.03.2015 will have to be send out of employment. It was after two years, on 09.08.2017 that a proviso was inserted enabling the teachers to obtain the minimum qualification, within a further period of four years. If there was no retrospective amendment from 31.03.2015, then those persons who qualified between 31.03.2015 and 09.08.2017, would be deprived of the benefit conferred by the provision; which, if not retrospective, would have only prospective effect from 09.08.2017. The retrospective effect given from 01.04.2015 took care of the interregnum, and the teachers who qualified within that period. Otherwise, there was no provision enabling continuance of teachers who had not acquired the minimum qualification prior to 31.03.2015, but did acquire it by 09.08.2017. 27. The vexing question would be as to whether the deeming retrospective effect given to the proviso would have to be deemed to be the commencement of the Amendment Act. 28. We have to pertinently observe that while the legislature gave retrospective effect to the amendment from 01.04.2015, the four-year period was stated to be from the date of commencement of the Amendment Act, 2017 and not from the date of giving effect of the Amendment Act. We have to also notice that the D.O. letter referred to by us, which speak of the four-year period expiring on 31.03.2019, also required the unqualified in-service teachers in Government/Government aided schools/Private schools which failed to enroll for a course of training in elementary education before 15.09.2017, being liable to face removal or dismissal procedures. The Diploma in elementary education as carried out by the NIOS was a two-year course which duration was reduced to 18 months only by the recognition order No. 182459-61 dated 22.09.2017 published in the Gazettee of India recognizing the project proposal of NIOS for Diploma in Elementary Education which also is an online programme. The Diploma in elementary education as carried out by the NIOS was a two-year course which duration was reduced to 18 months only by the recognition order No. 182459-61 dated 22.09.2017 published in the Gazettee of India recognizing the project proposal of NIOS for Diploma in Elementary Education which also is an online programme. Hence, those who enrolled on 15.09.2017 would barely complete the course by 14.03.2019, which would leave the NIOS, with a time of hardly 15 days, to conduct the examination and publish the results. It is in this context, we again observe that a proviso was inserted with retrospective effect from 01.04.2015, but the four year period was to be computed from the commencement of the Amendment Act, which is 09.08.2017. The effect of the proviso as understood by the Central Government and found by the learned Single Judge would lead to unintended consequences. We hold the four-year period to commence from 09.08.2017, which according to us was also the intention of the Parliament, as discernible from the specific words employed. 29. We would only notice the decision of the Hon’ble Supreme Court in Zile Singh vs. State of Haryana and Others reported in (2004) 8 SCC 1 . The amendment which came up for interpretation therein, was to an exception from a disqualification. On April 5, 1994 an amendment was made to the Municipal Act in Haryana bringing in a disqualification for being elected or continued as a member of the Municipality, to persons having more than two children. An exemption was provided to those who had more than two living children "on or after the expiry of one year of the commencement of the Act". This brought in anomalous consequences verging on absurdity since a person who has a third child on commencement of the Act would be disqualified, but the disqualification would be removed on expiry of one year. That was not the intention and noticing the anomaly a substitution was made in October, changing the word "after" to "up to". Zile Singh, was a member who had a fourth child in August and was hence sought to be disqualified. It was argued that the amendment cannot be given retrospective effect and that the one-year period could only commence from the date of substitution. Zile Singh, was a member who had a fourth child in August and was hence sought to be disqualified. It was argued that the amendment cannot be given retrospective effect and that the one-year period could only commence from the date of substitution. The Honourable Supreme Court found that the substitution was intended to remove the anomaly and by necessary implication it had retrospective effect from the date on which the disqualification was first brought into the statute book. It was held so in paragraph 22: – "22. The State Legislature of Haryana intended to impose a disqualification with effect from April 5, 1994 and that was done. Any person having more than two living children was disqualified on and from that day for being a member of municipality. However, while enacting a proviso by way of an exception carving out a fact-situation from the operation of the newly introduced disqualification the draftsman's folly caused the creation of trouble. A simplistic reading of the text of the proviso spelled out a consequence which the Legislature had never intended and could not have intended. It is true that the second amendment does not expressly give the amendment a retrospective operation. The absence of a provision expressly giving a retrospective operation to the legislation is not determinative of its prospectivity or retrospectivity. Intrinsic evidence may be available to show that the amendment was necessarily intended to have the retrospective effect and if the court can unhesitatingly conclude in favour of retrospectivity, the court would not hesitate in giving the Act that operation unless prevented from doing so by any mandate contained in law or an established principle of interpretation of statutes." 30. The purpose of the retrospective amendment in the present case was also to avoid an absurd construction or interpretation to the second proviso. 31. We cannot accede to the opinion expressed by the learned Single Judge; though not reasoned in so many words, that the cut-off date for acquisition of qualification as per the second proviso is 31.03.2019. We notice the pertinent words employed in the second limb of the second proviso that the minimum qualification has to be acquired ‘within a period of 4 years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment Act, 2017)’ (sic). We notice the pertinent words employed in the second limb of the second proviso that the minimum qualification has to be acquired ‘within a period of 4 years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment Act, 2017)’ (sic). The 4-year period does not begin from the date on which the second proviso is given effect to i.e: not as on 01.04.2015, retrospectively, as the first limb of the proviso does. The effect of the retrospective nature of the amendment has already been dealt with by us, which was necessary to bring within its ambit those who, subsequent to 31.03.2015, acquired the qualification, but before the date of amendment. But, if the four-year period was also to begin from the date of enforcement of amendment, there was nothing stopping the Union Parliament from specifying that, the period for acquiring minimum qualification is within four years from the date of enforcement of such provision. The 4-year period, significantly, was declared to be from the date of commencement of the Amendment Act of 2017, which is 09.08.2017, which period would run up to 08.08.2021. 32. Our interpretation would be that from 01.04.2010, there can be no persons appointed without the minimum qualification, as prescribed by the Central Government; subject only to any relaxation granted for a maximum period of 5 years. The relaxation, within the State of Bihar, was granted by the Central Government upto 31.03.2015, as enabled by sub-section (2) of Section 23. The first proviso to sub-section (2) obliged those unqualified teachers who were in service as on 01.04.2010 to acquire such qualification within a period of 5 years from 01.04.2010. The subsequent proviso introduced on 09.08.2017 with retrospective effect from 01.04.2015, provided for another 4-year period, not as a relaxation under sub-section (2) but as a statutory extension of the period for teachers appointed prior to 31.03.2015, within which category comes also the teachers appointed prior to 01.04.2010, to acquire the essential training qualification. Thus, the teachers without minimum qualification of teacher training were enabled to acquire the said qualification; whether they be appointed prior to 01.04.2010 or by virtue of the relaxation granted after 01.04.2010 till 31.03.2015. 33. The arguments addressed insofar as sufficient opportunity having not been given and the right to sit for supplementary examinations are all inconsequential, looking at the rigor of the statutory provision. 33. The arguments addressed insofar as sufficient opportunity having not been given and the right to sit for supplementary examinations are all inconsequential, looking at the rigor of the statutory provision. We find absolutely no reason to interfere with the statutory provision under Section 23 either as it was originally enacted or the second proviso, as introduced in 2017 with retrospective effect. The petitioners have not been able to raise any valid ground insofar as the illegality, arbitrariness, mischief or manifest wrong in the said provision. Section 23(2) provided a hiatus of 5 years maximum to bring in the rigor of the essential qualification and by the first proviso provided all who were in position as on the date of enforcement of the RTE Act; i.e: 01.04.2010, to acquire the minimum qualification within 5 years. Then, by the introduction of the second proviso, all who were in position as on 31.03.2015 were enabled a further period of 4 years, to achieve the minimum bench mark standard of essential teachers training qualification; all in the name of providing quality elementary education, the significance of which was highlighted by the Hon’ble Supreme Court, based on the provisions in the RTE act in Devesh Sharma vs. Union of India, 2023 SCC Online SC 985. 34. We do not think that the decisions with respect to the validity of a retrospective amendment are to be discussed, since they have absolutely no application. The retrospectivity given to the provision is only to enable everyone appointed prior to the RTE Act and during the relaxation period to enable acquisition of the minimum qualification. It does not take away any vested right of the teachers. Otherwise all who were in position on 31.03.2015 but did not acquire the minimum qualification prescribed as on that date would have to be sent out of employment. If the second proviso had not been retrospective then those teachers who had been in position as on 31.03.2015, acquiring the minimum qualification before the date of the Amendment Act, 2017 also would have to be terminated. 35. The right insofar as continuance of those unqualified teachers as on 01.04.2010, was taken away by the specific provision in the enactment, being the RTE Act. However, it is in avoidance of any ground of arbitrariness that a 5-year period was given to every such unqualified teacher to acquire such qualification. 35. The right insofar as continuance of those unqualified teachers as on 01.04.2010, was taken away by the specific provision in the enactment, being the RTE Act. However, it is in avoidance of any ground of arbitrariness that a 5-year period was given to every such unqualified teacher to acquire such qualification. This period also stood extended for another four years. The course duration of the teachers training course was a mere two years, later reduced to 18 months. Any diligent teacher would have qualified during the period provided and those who do not, are not competent to teach the students. This would be the statutory consequence, from which there is no escape. The statute having been framed in expansion of the right to equality and the furtherance of directive principles of state policy, for providing compulsory and quality education to the elementary students, there can be no claim of equity raised on grounds of deprivation of livelihood. 36. Despite the 5-year period having elapsed, the Union Parliament thought it fit to provide a further period of 4 years to acquire the qualification, in frustration of any ground of arbitrariness being taken up. The teachers who were appointed prior to 01.04.2010 never challenged the legislation brought in and the rigor introduced of a minimum qualification. Presumably this was due to the period of 5 years granted, to acquire such qualification. On expiry of the 5-year period when such qualification had not been acquired, they cannot challenge the provision. Insofar as the persons who were appointed during the period of relaxation, they were quite aware of the necessity to acquire the minimum qualification. They accepted the appointments without demur and with open eyes, quite conscious of the rigor of the provisions of the RTE Act and the notifications brought there under. The Union Parliament had provided a further period of 4 years from the date of commencement of the Amendment Act, 2017. We have now interpreted the 4-year period to be, commencing from the date of commencement of the Amendment Act, 2017 and not from the date of retrospective enforcement of the second proviso, which was incorporated by way of amendment. 37. The reference to Annexure-G produced in L.P.A. No.748 of 2022, is very relevant. We have now interpreted the 4-year period to be, commencing from the date of commencement of the Amendment Act, 2017 and not from the date of retrospective enforcement of the second proviso, which was incorporated by way of amendment. 37. The reference to Annexure-G produced in L.P.A. No.748 of 2022, is very relevant. It discloses the decision taken by the Ministry of Human Resource Development, Government of India, to get completed the 18 months online course through distance education by the NIOS after registration on self-study webs of active learning for young aspiring minds portal; which was notified. The notification itself was dated 09.08.2017, simultaneous to the amendment, and it was categorically declared that teachers who are left untrained in the specified period would not be continued in service and action will be initiated for discharging them from service. 38. Further, contentions were raised by the parties that the Institutions which conducted the training courses in teacher education had a provision for appearing in supplementary examinations, on failure to qualify at the first instance. The regulation to appear for supplementary examinations as brought out by the Institution carrying on the courses cannot regulate the Union Legislation and, in any manner, dilute the statutory rigor brought in; which as we noticed at the outset was to improve and enhance the standards of education which would only be carried out by having qualified and trained teachers in place. Definitely, the persons who were admitted to the courses and who failed at the first instance could sit for supplementary examinations, as permitted by the Institutions conducting the courses; but that would not enable them to continue in employment till such chances of supplementary examinations are over or till they qualify in such examinations. They cannot also claim employment, if they qualify after the last four year period provided under Section 23. 39. We were also faced with an argument of compassionate appointments having been made of persons in the post of teachers, who are to be continued. Even those appointees cannot seek absolution from the rigor of obtaining the teachers training qualification before the date provided by the legislation. If the State so wills, on termination, considering the appointment having been given on compassionate grounds, they could be adjusted against lower vacancies as ministerial staff or Class IV category; as permitted by the rules of the State Government. If the State so wills, on termination, considering the appointment having been given on compassionate grounds, they could be adjusted against lower vacancies as ministerial staff or Class IV category; as permitted by the rules of the State Government. However, without acquiring the minimum qualification as provided under Section 23(1), that too within the prescribed period, there is no question of their continuance as teachers. 40. In the context of our interpretation, we are of the opinion that the declaration of the learned Single Judge insofar as those teachers who had completed the courses before 31.03.2019 but not acquired the qualification by reason only of non-issuance of certificates, results having not been declared and also results being withheld would have to be related to the 4- year period as found by us. We have to, emphatically declare that any person who is found to have qualified within the period provided by the legislation would have to be considered to be deemed to have continued from the date of their initial appointment. Those who have not obtained the required qualification within the prescribed period would stand terminated. 41. On the interpretation given by us to Section 23(1), we issue the following directions: – (1) those who were appointed prior to 01.04.2010 who have acquired the teaching qualification on or before 08.08.2021 would be entitled to be continued; (2) the results withheld, when declared, if it relates back to the period before 08.08.2021, those persons should be continued in employment; (3) the issuance of certificates also would have to concede to the date of publication of results; which if published before 08.08.2021, those persons will be deemed to have been continued; (4) the unqualified teachers who were appointed during the relaxation period, i.e. between 01.04.2010 and 31.03.2015 will also be deemed to have been continued, if they have acquired the teachers training qualification; the minimum qualification, on or before 08.08.2021. (5) The persons, who were appointed after 31.03.2015, if are unqualified will have to be terminated even if, they have acquired the qualification within 08.08.2021; since their appointment itself is invalid. There could not have been any unqualified persons appointed after 31.03.2015. (6) Those who were in place as teachers on 01.04.2010 and then on 31.03.2015, if not acquired the qualification before 08.08.2021 will stand terminated. 42. There could not have been any unqualified persons appointed after 31.03.2015. (6) Those who were in place as teachers on 01.04.2010 and then on 31.03.2015, if not acquired the qualification before 08.08.2021 will stand terminated. 42. We find that L.P.A. No.744 of 2022 is correctly decided since it was filed by unqualified teachers appointed after 31.03.2015, whose appointments, at the inception, were bad for violating Section 23(1) of the RTE Act. On the above interpretation and reasoning the writ petitions, in so far as the challenge to Section 23, are dismissed and the L.P.As are partly allowed subject to the above directions; on the basis of which individual cases are to be considered by the State Government. Any teacher coming within the ambit of the first and second proviso to Section 23 can approach the State Government with individual representations, which will be considered in the light of our directions herein above. We specify individual representations since we have been shown a tendency to file enmasse representations on behalf of a group of persons, to enable a motion of contempt before this Court to again agitate the causes already decided. The claims raised by individuals should be based on the acquisition of qualification, which revolves around individual facts. 43. Ordered accordingly. Ashutosh Kumar, J. – I agree. Rajiv Roy, J. – I agree.