UPTET : Allahabad Highcourt Judgement for writ 39674 / 2012 and others PART 3

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 3

I have heard learned counsel for the parties and examined the records. 

The appointment on the post of Assistant Teachers in Parishadiya Vidyalayas, which are run/managed by the Basic Shiksha Parishad constituted under the U.P. Basic Education Act, 1972 are regulated by the statutory Rules framed in exercise of powers under Section 19 of the Basic Education Act known as U.P. Basic Education Teachers Service Rules, 1981. The Rules contemplate appointment on the post of Assistant Teachers in three category of institutions; (i) Nursery School; (ii) Junior Basic School; and (iii) Senior Basic School. Under Rule 8 of the ''1981 Rules' appointment by direct recruitment can only be made of teachers in nursery school and junior basic school while the appointment on the post of teachers in senior basic school and head master are required to be made by way of promotion only. The cadre strength of the service has been provided for under Rule 4. 

The Rules contemplate advertisement of vacancies, preparation of the select list on the basis of the quality points marks as per the academic qualifications as per Rule 17-A and Rule 19. Appointment is to be made by an order in writing under Rule 20. This Court may record that the 1981Rules' did not contemplate any appointment as Apprentice Teacher or Trainee Teacher on the relevant date with reference to the advertisement dated 30.11.2011. 

Under Section 23 of The Right of Children to Free and Compulsory Education Act, 2009, a power has been conferred upon the Central Government to appoint an academic authority for laying down the minimum qualifications in respect of the teachers to be appointed in the institution covered by the said Act of 2009. The Ministry of Human Resources under notification published on 05.04.2010 has authorised the National Council for Teachers Education as the academic authority for laying down the minimum qualifications for a person to be eligible for appointment as teacher. It is with regard to such notification that the National Council of Teachers Education has published a notification dated 23.08.2010 laying down the minimum qualification for appointment of teachers for various category of institutions. A copy of the said notification is at page 54 to 56 of the present writ petition. The relevant portion of the notification is being reproduced below :- 

NATIONAL COUNCIL FOR TEACHER EDUCATION 

NOTIFICATION 

New Delhi, the 23rd August, 2010. 

F.No.61-03/20/2010/NCTE/(N&S).--In exercise of the powers conferred by Sub-section (1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009), and in pursuance of Notification No.S.O.750 (E) dated 31st March, 2010 issued by the Department of School Education and Literacy, Ministry of Human Resource Development, Government of India, the National Council for Teacher Education (NCTE) hereby lays down the following minimum qualifications for a person to be eligible for appointment as a teacher in class I to VIII in a school referred to in clause (n) of Section 2 of the Right of Children to Free and Compulsory Education Act, 2009, with effect from the date of this Notification :- 

1. Minimum Qualifications.- 

(I) Classes I-V 

(a) Senior Secondary (or its equivalent) with at least 50% marks and 2- year Diploma in Elementary Education (by whatever name known) 

OR 

Senior Secondary (or its equivalent) with at least 45% marks and 2- year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002 

OR 

Senior Secondary (or its equivalent) with at least 50% marks and 4- year Bachelor of Elementary Education (B.Ed.) 

OR 

Senior Secondary (or its equivalent) with at least 50% marks and 2- year Diploma in Education (Special Education) 

AND 

(b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose. 

(ii) Classes VI-VIII 

(a) B.A./B.Sc and 2 - year Diploma in Elementary Education (by whatever name known) 

OR 

B.A./B.Sc with at least 50% marks and 1-year Bachelor in Education (B.Ed) 

OR 

B.A./B.Sc with at least 45% marks and 1- year Bachelor in Education (B.Ed), in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard 

OR 

Senior Secondary (or its equivalent) with at least 50% marks and 4- year Bachelor in Elementary Education (B.Ed) 

OR 

Senior Secondary (or its equivalent) with at least 50% marks and 4- year BA/B.Sc. Ed or B.A. Ed.B.Sc.Ed. 

OR 

B.A./B.Sc. with at least 50% marks and 1 -year B.Ed. (Special Education) 

(b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose. 

2. Diploma/Degree Course in Teacher Education.- For the purposes of this Notification, a diploma/degree course in teacher education recognized by the National Council for Teacher Education (NCTE) only shall be considered. However, in case of Diploma in Education (Special Education) and B.Ed (Special Education), a course recognized by the Rehabilitation Council of India (RCI) only shall be considered. 

3. Training to be undergone.- A person - 

(a) With BA/B.Sc. with at least 50% marks and B.Ed qualification shall also be eligible for appointment for class I to V upto 1st January, 2012, provided he undergoes, after appointment, an NCTE recognized 6-month special programme in Elementary Education. 

(b) with D.Ed (Special Education) or B.Ed (Special Education) qualification shall undergo, after appointment, an NCTE recognized 6-month special programme in Elementary Education." 

At the very outset, this Court may record that the power conferred upon the NCTE is only in respect of laying down of the minimum qualification and not beyond it. The National Council for Teachers Education cannot prescribe the mode or manner of selection or for creation of post in any category of the institutions run by the Basic Shiksha Parishad. Accordingly, the notification issued by the National Council for Teachers Education dated 23.08.2010 is to be read in the background of the power vested in it. 

From a simple reading of the Notification dated 23.08.2010, it is apparently clear that for teachers to be appointed for teaching in Class I to V which, as admitted to the parties, would be a junior basic school covered by ''1981 Rules' have been provided as quoted above. However, having regard to the fact that there may be a shortage of such qualified teachers, under clause 3 of the Notification dated 23.08.2010 a relaxation has been provided in the matter of appointment of candidates who is Graduate and B.Ed. with the condition that after appointment, he/she would necessarily be required to undergo the training of six months in elementary education as per the programme recognised by NCTE. 

In the aforesaid background, it is apparently clear that neither the Right to Education Act, nor ''1981 Rules' contemplate any appointment as Trainee Teacher at least upto the last date of making of the application under the advertisement dated 30.11.2011. As a matter of fact, there was no concept of appointment of Apprentice Teacher under the ''1981 Rules'. 

What has been stated above is also supported from clause 3 of the NCTE Notification dated 23.08.2010, which provides that after the appointments are made of the candidates who are Graduate, B.Ed. and TET, then they shall be required to undergo a special training of six months. Appointment as Assistant Master or Mistress in junior basic school run by the Basic Shiksha Parishad could be made only within the four corners of the U.P. Basic Education Teachers Service Rules, 1981 and not de hors the same. 

It is not in dispute that the State Government did not create any post of Apprentice Teachers by any other notification. The appointments under the advertisement dated 30.11.2011 were to be made against the cadre posts covered by ''1981 Rules' is well supported from the first line of the advertisement, which is being reproduced again here under :- 

"mRrj izns'k csfld f'k{kk ifj"kn ds v/khu lapkfyr izkFkfed fo+|ky;ks esa izf'k{kq f'k{kdksa ds p;u gsrqA" 

The clause 9 of the advertisement dated 30.11.2011 specifies that selected candidate shall be appointed in an Parishadiya institution of the District concerned and he shall then undergo training of three months at District Institution of Education and Training of the district concerned (DIET) and three months training at the institution. 

The stipulation in clause 10 of the advertisement dated 30.11.2011 is that the selected candidate on successful completion of the training would become entitled to be considered for appointment on the substantive post as a teacher in accordance with the ''1981 Rules' is in itself sufficient to establish that the advertisement was with regard to the posts covered under the ''1981 Rules'. 

Continued in Part 4