See Case Details :
Court No. - 18
Case :- WRIT - A No. - 28004 of 2011
Petitioner :- Santosh Kumar Mishra And Others
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.,K.S.Kushwaha,R.A.Akhtar
Hon'ble Krishna Murari,J.
Heard learned counsel for the petitioners, learned Standing Counsel for respondent no. 1 & 2, Sri K.S. Kushwaha for respondent no. 3.
Challenge in this petition has been made to the order dated 14.1.2011 issued by the National Council for Teachers Education according approval to the proposal of the State Government for conducting elementary teacher education programme of two years duration through open and distance learning mode for training of
untrained graduate 'Shiksha Mitra' appointed by the State Government in elementary schools subject to the conditions mentioned therein.
Sri Ashok Khare, Senior Advocate assisted by Sri Siddharth Khare contends on behalf of the petitioners that the impugned order is based upon a wrong assumption that 'Shiksha Mitra' are untrained teachers as their engagement is under a scheme notified by the Government Order dated 26.5.1999 as modified from time to time and is purely contractual in nature and for one academic session.
With reference to the provision of Section 23(1) of the Right of Children to Free and Compulsory Education Act, 2009 providing for qualification for appointment and terms & conditions of service of teachers and notification dated 23.8.2010 issued by the National Council for Teachers Education there under specifying minimum qualifications required to be possessed by Assistant Teachers teaching in class I to VIII, it has been urged that since the prescribed minimum qualifications for engagement of 'Shiksha Mitra' is only intermediate certificate examination, the persons so engaged do not conform to the minimum qualifications prescribed for Assistant Teachers and thus they are being wrongly and illegally considered as untrained teachers entitled to undergo training programme. It has further been submitted that after enforcement of U.P. Basic Education (Teachers) Service Rules, 1981 training certificate is essential qualification under Rule 8 and there does not exist any provision for appointment of untrained teachers in any institution run by the Board of Basic Education and thus the appointment of 'Shiksha Mitra' is de hors the rules and they cannot be be treated to be legally appointed untrained teachers so as to undergo training.
Reliance in support of the contention has been placed upon a Division Bench judgment dated
17.12.2008 in special appeal no. 10 of 2010 wherein while considering a similar scheme for imparting teachers training to untrained teachers in privately managed recognized institutions, it has been held that Assistant Teachers appointed after enforcement of U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Teachers & others) Conditions Rules, 1975 and U.P. Recognized Basic Schools (Junior High Schools) (Recruitment & Conditions of Service of Teachers) Rules, 1978 in violation of
provision thereof and without possessing training qualification cannot be permitted to undergo training. It is next contended that since the provisions of U.P. Public Service (Reservation for S.C.,S.T & O.B.C.) Act, 1994 are not applicable in the scheme of appointment of 'Shiksha Mitra', imparting training and their
subsequent appointment shall violate the reservation policy.
It has further been submitted that under the scheme of appointment of 'Shiksha Mitra', eligibility is restricted to candidates belonging to the village where the educational institution is situated or to the concerned Nyay Panchayat and their selection is not on the basis of open general competition but limited to a localised section and preference being given to such persons for training depriving the petitioners and other similarly situated persons from participating in open general competition would be discriminatory.
Learned Standing Counsel for State respondents and Sri K.S. Kushwaha for respondent no. 3 when called upon only sought time to file counter affidavit.
As prayed they may file counter affidavit within six weeks.
Learned Standing Counsel shall also produce the policy framed by State Government.
Sri R.A.Akhtar who has accepted notice on behalf of respondent no. 4 is not present even though the case has been taken up in the revised list. He may also file counter affidavit within the same period.
Petitioners will have three weeks thereafter for filing rejoinder affidavit.
List after expiry of the aforesaid period.
Since prima-facie from a conjoint reading of National Council for Teachers Education Act and the regulations framed thereunder, provision of U.P. Basic Education Act and the Right of Children to Free and Compulsory Education Act, 2009, it appears that the training is permissible only in cases of validly and legally appointed untrained teachers and the impugned approval dated 14.1.2011 for training of 'Shiksha Mitra' proceeds upon an erroneous assumption that they are legally appointed untrained teachers, the petitioners are entitled to interim order.
Further in view of serious ramification of the consequences of the impugned approval and the impact on very large number of candidates, also it would be appropriate to pass an interim order.
Until further orders of this Court, effect and operation of the impugned approval order dated 14.1.2011 passed by the National Council for Teacher Education, New Delhi (Annexure No. 14 to the writ petition) shall remain stayed.
Order Date :- 18.5.2011
Source : http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=1251898
(Information provided by Mr. Shyam Dev Mishra through Email)
MORE UPDATES WILL BE SHORTLY PUBLISHED