UPTET : Allahabad Highcourt Judgement for writ 39674 /
2012 and others
Judgements is lengthy , therefore I take its important details in parts ( for authenticity contact concerned authority, and for verification etc., visit court's website, source link can be found at the end of details)
PART 2
Learned counsel for the petitioners have raised following basic issues, (a) for challenging the Cabinet decision dated 23.07.2012, the Government Order dated 26.07.2012 and 15th amendment dated 31.08.2012 as well as the Government Order dated 31.08.2012, (whereby the advertisement dated 30.11.2011 has been cancelled) and (b) for a writ of mandamus directing the State Government to compete the process of selection, in terms of the advertisement dated 30.11.2011 :
(a) The Mal practice as reported in respect of the TET Examination held in the year 2011 is related to a very few number of candidates. It cannot be the basis for declaring the TET Examination to be treated as an eligibility qualification only and for selection being not made on the post of Apprentice Teacher on the basis of marks obtained in TET Examination. According to the petitioners, the bad part should have been segregated from the remaining good part of the TET Examination. The petitioners can not made to suffer because of illegalities committed by officials of one particular district or some districts.
(b) The 15th amendment made in '1981 Rules' is prospective in nature and even otherwise did not affect the procedure, which was to be followed in the matter of selection and appointment of Apprentice Teachers under the advertisement dated 30.11.2011. According to the petitioners, any amendment under the Rules would not affect the proceedings, which had already been initiated in the matter of appointment of Apprentice Teachers.
(c)According to the one set of the petitioners lead by Sri Ashok Khare and Sri P.N. Saxena, learned senior Advocates and Sri Shailendra, the vacancies which were advertised on 30.11.2011 were not against the posts of Assistant Teachers covered by '1981 Rules'. Therefore neither the '1981 Rules' had any application, nor any amendment made thereunder would affect the proceedings of selection. It is their case that in fact the petitioners, who were not possessed of the minimum qualification as per the NCTE Rules notified under notification dated 23.08.2010 were to be selected for undergoing the special training so as to become eligible for appointment as teachers against the post covered by '1981 Rules'. Therefore reference to the '1981 Rules' and the amendments made thereunder by the State Government for cancelling the process of selection as initiated under the advertisement dated 30.11.2011 is illegal.
(d) The other set of petitioners lead by Sri Abhishek Srivastava contend that the '1981 Rules' have to be applied in the matter of appointment in terms of the advertisement dated 30.11.2011 as the appointments were to be made against the post of Parishadiya teachers covered by '1981 Rules'. It is, however, his case that the XVth amendment in '1981 Rules' being prospective in nature will not affect the process of selection initiated under advertisement dated 30.11.2011.
It is insisted by Sri Abhishek Srivastava that his contention as per the written argument be noticed in the judgement. The written submission read as follows :-
"That any effort by the State Government in amending the 1981 and creating a post of trainee teacher by including the B.Ed. qualification as a part of minimum qualification in Rule-8 of 1981 rules will be declared ultra-vires and will amount to add B.Ed. qualification, as the valid qualification for Class-1 to 5 in contrary to paragraph no.1 of the N.C.T.E. notification dated 23.8.2010 and 29.7.2011 and i.e. why the State Government at the time of making 12th amendment in 1981 rules on 9.11.2011 had included the T.E.T. Qualification in the Rule-8 and Rule-14 in conformity with the N.C.T.E. notification dated 23.8.2010 and 29.7.2011 and had not included B.Ed. qualification as a valid qualification for appointment in Classes 1 to 5 in those rules as being conscious of the fact that after the expiry of the relaxation given by the N.C.T.E. in the paragraph no.3 of the notification dated 23.8.2010 and 29.7.2011, the said qualification could not be considered for appointment as teacher in Classes 1 to 5 and therefore the State Government by virtue of advertisement dated 30.11.2011 had duly advertised the vacancy in many leading newspaper having vast circulation in the State and had also issued in the name of appointing authority, thereby satisfying the condition as provided under Rule 14 (1) of the 1981 Rules as amended by 12th amendment dated 9.11.2011 and further if the power to advertise the vacancy lies with the District Basic Education Officer, then in that case if the Secretary Basic Shiksha Parishad, Allahabad i.e. the Board has also got powers to advertise those vacancies in pursuance of the permission of the State Government to advertise the same in the leading newspaper having the circulation in the State for all the districts of the State Government and such publication could not be held to be contrary to Rule 14 (1) of the amended rule of 1981 Rules."
Sri Simant Singh comes with an additional plea before this Court, namely that if the Cabinet of Ministers in its meeting held on 23.07.2012 had found that there were serious irregularities in holding the TET Examination of 2011, then the entire examination should have been declared null and void, inasmuch as if the marks obtained in the said examination are not good for the purposes of being made the basis for selection, then the same examination cannot be treated to be good for declaring a candidate to have qualified the TET Examination.
Lastly, it is contended that preparation of the merit list on the basis of the marks secured in the TET Examination is in conformity with the guidelines for conducting the Teachers Eligibility Test as framed by NCTE in exercise of powers as conferred by Central Government in exercise of powers under Section 23 of the Right of Children to Free and Compulsory Education Act, 2009. The guidelines provide for weightage being granted to the candidates on the basis of the marks secured in the TET Examinations.
Sri C.B. Yadav, learned Additional Advocate General on behalf of the State disputes the correctness of the contentions so raised and in reply submits that the State Government had committed an error in publishing the advertisement dated 30.11.2011 for making appointment of Apprentice Teachers against the cadre post of Assistant Teachers covered by ''1981 Rules'. He submits that on the relevant date, there was no provision for appointment of Apprentice Teacher in ''1981 Rules'. The '1981 Rules' then contemplated only one nature of appointment i.e. substantive after due advertisement and selection in accordance with the 1981 Rules'. It is his case that the State Government has only corrected the error by deciding to quash the advertisement dated 30.11.2011, as it was per-se, illegal and arbitrary. According to Sri Yadav, the State Government has a right to stop the selection proceedings at any stage. It cannot be directed that once an advertisement has been made, the State Government must complete the process of selection and make appointment in all circumstances.
Sri Yadav explains that the State Government realising the mistake which had occurred earlier, has now made necessary amendments in the ''1981 Rules' by 16th amendment dated 06.12.2012. A provision for appointment of Trainee Teachers has been added and accordingly a fresh advertisement inviting applications from the persons like the petitioners for being considered for appointment as Apprentice Teachers has been issued on 07.12.2012.
Sri Yadav points out that the right of the petitioners to apply against the same post has not been lost because of cancellation of the earlier advertisement dated 30.11.2011. They can make their applications against the fresh advertisement on satisfaction of the conditioned mentioned. He further points out that under the NCTE guidelines itself it was provided that the TET Examination shall be treated to be an eligibility criteria and therefore also the marks obtained in the TET Examination could not have been made the sole criteria for selection as per the advertisement dated 30.11.2011.
According to the State there being no post of Apprentice Teacher and there being no provision under the ''1981 Rules' for appointment as Apprentice Teacher against the regular cadre post of teachers in Parishadiya Vidyalayas, the advertisement dated 30.11.2011 itself was bad and this Court may not insist upon the State to complete the process of selection in terms of the said bad advertisement.
He points out that serious infirmities had been noticed in holding of the TET Examination. It was always open to the State Government to have declared the entire examination bad, however having regard to the larger interest of the students such decision has not been taken. It is also contended that if the contrary plea of the petitioners is accepted, then they would be illegible for any appointment as passing of the TET Examination is as an essential qualification for appointment as Assistant Teachers as per the notification of the NCTE issued in exercise of power conferred by the Central Government under Section 23 of The Right of Children to Free and Compulsory Education Act, 2009. Therefore, the arguments advanced by Sri Simant Singh, Advocate are self defeating.
In rejoinder affidavit, learned counsel for the petitioners points out that no such plea has been raised in the counter affidavit filed by the State Government and whatever has been argued by Sri Yadav is only an afterthought. The advertisement dated 30.11.2011 is not with reference to any posts created by the State Government. It is only for the purposes of making the petitioners eligible for ultimately being appointed as teachers against the cadre post covered by ''1981 Rules'.
Sri Rizwan Ali, learned counsel has appeared on behalf of the NCTE and it is his categorical case that the NCTE under the Right of Children to Free and Compulsory Education Act, 2009 can only laid down the minimum qualification for appointment of teachers in the institutions, which fall within the four corners of the Right of Children to Free and Compulsory Education Act, 2009. It has no power to regulate the appointment or to create the post.
The TET Examination under the guidelines of the NCTE specifically clause 9 is specified to be only one of the eligibility criteria for appointment.
Continued in Part 3
