UPTET : Allahabad Highcourt Judgement Case :- SPECIAL APPEAL No. - 2366 of 2011 PART 8

UPTET : Allahabad Highcourt Judgement Case :- SPECIAL APPEAL No. - 2366 of 2011 

इस केस ने लाखों टी ई टी अभ्यार्थीयों  को संशय में डाल दिया है 

केस की प्रोसीडिंग कई पेजों की है इसलिये में टुकड़ों में इसके मुख्या अंशों' को पब्लिश करने की कोशिश कर रही हूँ ।

क्योंकि इतने सारे पेजों का इस केस को ब्लॉग पर डालने में परेशानी आ रही है 

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PART 8

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Section 23 of the 2009 Act provides qualification for appointment and terms and conditions of service of teachers. For ready reference Section 23 of the 2009 Act is quoted below:- 

"23. Qualification for appointment and terms and conditions of service of teachers.--

(1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher." 

Sub-section (1) of Section 23 requires that any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government shall be eligible for appointment as teacher. The NCTE has been authorised by the Central Government to act as an academic authority. 

Sub-section (2) of Section 23 provides that where a State does not have training institutions offering courses or training in teacher education, or teachers possessing teachers possessing minimum qualification are not eligible in sufficient number, the Central Government may, if it deems necessary, by notification relax the minimum qualifications required for appointment as a teacher. The Legislature was well aware of the shortage of teachers throughout the country and non availability of sufficient number of qualified teachers to teach in primary classes. Thus sub-section (2) of Section 23 specially reserved a right in the Central Government for relaxation in the minimum qualification required for appointment for a period not exceeding five years. The provisions of 2009 Act thus clearly indicate that Legislature was well aware of non availability of qualified teachers to teach in primary schools. 

Now we come to the scheme of the notification dated 23rd August, 2010, which has already been quoted above. Clause 1(i) of the notification provides for minimum qualification for teachers for Classes I to V. 

The qualification for teachers for Class I to V are Senior Secondary (or its equivalent) with at least 50% marks and 2 year Diploma in Elementary Education or Senior Secondary (or its equivalent) with at least 45% marks and 2 year Diploma in Elementary Education in accordance with NCTE Regulations 2002 or Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor of Elementary Education (B.El.Ed.) or Senior Secondary (or its equivalent) with at least 50% marks and 2 years Diploma in Education (Special Education) AND pass in Teacher Eligibility Test (TET). 

For Class VI to VIII the qualifications are BA/BSc and 2 year Diploma in Elementary Education or BA/BSc with at least 50% marks and 1 year Bachelor in Education or BA/BSc with at least 45% marks and 1 year Bachelor in Education in accordance with the NCTE Regulations issued from time to time or Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor in Elementary Education (B.El. Ed) or Senior Secondary (or its equivalent) with at least 50% marks and 4 year BA/BSc. Ed or B.A. Ed./BSc. Ed or BA/BSc with at least 50% marks and 1 year B.Ed. AND pass in the Teacher Eligibility Test (TET).

 Clause 3 of the notification only contains a provision that a person with BA/BSc with at least 50% marks and B.Ed. shall also be eligible for appointment to teach Class 1 to V up to 1st January, 2012 provided he undergoes after appointment an NCTE recognised 6 months special program in elementary education. Thus the provisions of Clause 3 are a substantive provisions which are in addition to the minimum qualification prescribed for teachers to teach Class I to VIII. 

In Clause 3 the qualification BA/BSc and BEd for appointment as teacher to teach Class I to V is provided for and the use of word "also" in Clause 3(a) clearly indicates that the said qualifications are in addition to qualifications as laid down in Clause 1. Thus it cannot be held that person having BA/BSc with 50% marks and B.Ed. is not eligible for appointment as teacher in Class 1 to 5 unless he passes TET. 

It is well established rule of statutory interpretation that two provisions of a Statute have to be interpreted in a manner so as to give meaning and purpose to both the provisions and they have to be harmoniously construed. Following was laid down by the Apex Court in the case of Krishna Kumar vs. State of Rajasthan and others reported in 1991(4) SCC 258 in paragraph 11 which is as under:- 

"11. It is well settled principle of interpretation that where there appears to be inconsistency in two sections of the same Act, the principle of harmonious construction should be followed in avoiding a head on clash. It should not be lightly assumed that what the Parliament has given with one hand, it took away with the other. The provisions of one section of statute cannot be used to defeat those of another unless it is impossible to reconcile the same. In Venkataramana Devaru v. State of Mysore, this Court observed: 

"The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with teach other, they should be so interpreted that, if possible, effect should be given to both. This is what is known as the rule of harmonious construction." 

........" 

Again the Apex Court in the case of Jagdish Singh vs. Lt. Governor, Delhi and others reported in 1997(4) SCC 435 has laid down following in paragraph 7 which is as under:- 

"7. A conjoint reading of the aforesaid provisions would make it clear that Rule 24 provides the conditions to be complied with by a person for being admitted as a member of a co-operative society. Rule 25 enumerates the disqualifications of a person for becoming a member of a co-operative society. Sub-clause (c) of Rule 25(1) deals with the disqualifications of a person in case of a housing society, clause (iii) of Rule 25(l)(c) provides that the said person or his spouse or any of his dependent children if is a member of any other housing society then he can't become a member of another housing society unless permitted by the Registrar, Sub-rule (2) of Rule 25 provides for a deemed cessation of a member in the event that member incurs any of the disqualifications mentioned in sub-rule (1) of Rule 25 with effect from the date of such disqualification. Sub-rule (4) of Rule 25 confers power to decide a dispute as to whether a member has incurred any of the disqualifications referred to in sub-rule (1). Rule 28 of the Rules confers power on the Registrar directing removal of an individual from membership either or both of the co-operative societies when such individual has become a member of two co-operative societies of the same class. The short question that arises for consideration is whether a person who is a member of a housing co-operative society having incurred the disqualification under Rule 25(l)(c)(iii) on being a member of a subsequent housing society would cease to be a member of both the societies with effect from the date of the disqualification incurred by him. It is a cardinal principal of construction of a statute or the statutory rule that efforts should be made in construing the different provisions, so that, each provision will have its play and in the event of any conflict a harmonious construction should be given, Further a statute or a rule made thereunder should be read as a whole and one provision should be construed with reference to the other provision so as to make the rule consistent and any construction which would bring any inconsistency or repugnancy between one provision and the other should be avoided. One rule cannot be used to defeat another rule in the same rules unless it is impossible to effect harmonisation between them. The well-known principle of harmonious construction is that effect should be given to all the provisions, and therefore, this Court had held in several cases that a construction that reduces one of the provisions to a 'dead letter' is not a harmonious construction as one part is being destroyed and consequently court should avoid such a construction. Bearing in mind the aforesaid rules of construction if sub-rule (2) of Rule 25 and Rule 28 are examined the obvious answer would be that under sub-rule (2) the deemed cessation from membership of the person concerned is in relation to the society pertaining to which disqualifications are incurred A plain reading of Rule 28 makes it crystal clear that the Registrar when becomes aware of the fact that an individual has become a member of two co-operative societies of the same class which obviously is a disqualification under Rule 25 then he has the discretion to direct removal of the said individual from the membership of either or both the co-operative societies. If sub-rule (2) of Rule 25 is interpreted to mean that deemed cessation of the person concerned from membership of both the societies then the question of discretion of the Registrar under Rule 28 will not arise. If the interpretation given by the Registrar to sub-rule (2) of Rule 25 as well as the contention raised by the learned counsel for the respondents is sustained then the said sub-rule will be at loggerhead with Rule 28. On the other hand, if sub-rule (2) is interpreted to mean that the deemed cessation is in relation to the society in respect of which the person concerned incurs the disqualification then both sub-rule (2) as well as Rule 28 would have its play. Rule 28 in our considered opinion cannot be held to be otiose and must be allowed to have its full play. In this view of the matter the only way by which sub-rule (2) of Rule 25 and Rule 28 can be harmoniously construed is to construe sub-rule (2) to Rule 25 to mean that the deemed cessation of the person concerned from the membership of the society is the society in respect of which the disqualification was incurred. In the casein hand the disqualification which the appellant incurred was in respect of his membership of the Tribal Co-operative Housing Society Ltd. as he could not have become a member of the said society as he was already a member of Dronacharaya Co-operative Group Housing Society, and therefore, by operation of sub-rule (2) he would deem to have ceased to be a member from the Tribal Co-operative Housing Society right from the inception in November, 1983 and not from the Dronacharaya Co- operative Group Housing Society." 

The fact that in the notification the said appointment to BA/BSc with 50% marks and B.Ed. for Class I to V was limited till 1st January, 2012 clearly indicated that the 

said Clause 3 was inserted as exception to an additional qualification to one which was provided in Clause 1. Further requirement that such teachers appointed to Classes I to V which were BA/BSc with 50% marks and B.Ed. shall be provided six months elementary program is clearly for achieving the purpose for which notification was issued. 

The notification dated 23rd August, 2010 has been amended by notification dated 29th July, 2011 wherein paragraph 3 was substituted as follows:- 

"3(i) Training to be undergone,- A person - 

(a) with Graduation with at least 50% marks and B.Ed. qualification or with at least 45% marks and 1-year Bachelor in Education (B.Ed.), in accordance with NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard, shall also be eligible for appointment to Class I to V up to 1st January, 2012, provided he/she 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 recognised 6-month Special Programme in Elementary Education. 

..........." 

The scheme of Clause 3 as an additional qualification for appointment as teacher to teach Class I to V was thus clearly retained and continued even after amendment. 

Sri C.B. Yadav, learned Additional Advocate General appearing for the State submits that notification dated 23.8.2010 both in paragraph 1 as well as in paragraph 3 require a candidate to have passed TET. 

As noted above, qualifications as prescribed in paragraph 1 of the notification specifically includes the qualification by words "And pass in the Teacher Eligibility Test (TET)". In paragraph 3, there is no such clause present requiring passing of teacher eligibility test. 

When the statutory authority in paragraph 1 has specifically included qualification "pass in the teacher eligibility test", there was no reason for not mentioning the same in clause 3 of the notification dated 23.8.2010 if, it was intended that candidates who are covered by clause 3 should also have passed TET. A plain meaning of the words have to be taken and accepting the argument of learned Additional Advocate General shall be nothing but to add words in the notifications which are not present in clause 3. Learned Additional Advocate General submits that the State in its rules namely U.P. Basic (Teachers) Service Rules, 1981 has provided by amendment qualifications of passing TET and in the advertisement which has been issued for appointing trainee teachers also, the qualifications of passing TET has been mentioned. 

He further submits that the State has also framed Rules under section 38 of 2009 Act namely; U.P. Right of Children to Fee 

and Compulsory Education Rules, 2011 which also require passing of TET. The guidelines issued by the Government of India dated 8.11.2010 in exercise of powers under section 35(1) has also been referred to. 

The basic education in the State of U.P. is regulated by an Act namely; U.P. Basic Education Act, 1972. Statutory rules have been framed under the U.P. Basic Education Act, 1972 namely; U.P. Basic Education (Teachers) Service Rules, 1981. 1981 Rules contains provisions for cadre of strength, recruitment, qualifications, procedure for recruitment and certain other provisions regulating the service conditions of teachers of basic schools. As noted above, Parliament has enacted the Right of Children to Free and Compulsory Education Act, 2009 of which Section 23 provides for qualification for appointment and terms and conditions of service of teachers. Section 23(1) provides that any person possessing such minimum qualifications as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a Teacher. Central Government has notified National Council for Teacher Education as academic authority which has issued notification dated 23.8.2010 laying down minimum qualifications for appointment of teacher in a basic school. Prior to laying down the qualifications under section 23 by the academic authority, the qualification for appointment of teacher in the basic schools were prescribed in 1981 Rules. It is relevant to note that the State has amended the 1981 Rules by U.P. Basic Education (Teachers) Service (12th Amendment) Rules, 2011 dated 9.11.2011 by which rule 8 which provided for essential qualifications for appointment of teacher has been amended. The amendment in Rule as brought by 12th Amendment Rules are as follows: 

Academic Qualifications 8.-(1) The essential qualifications of candidates for appointment to a post referred to in clause (a) of rule 5 shall be as shown below against each:- 

Academic Qualifications 8.- (1)The essential qualifications of candidates for appointment to a post referred to in clause 

(a) of rule 5 shall be as shown below against each:- 

Post 

Academic Qualifications 

Post 

Academic Qualifications 

(i) Mistress of Nursery School 

Certificate of Teaching (Nursery) from a recognized Training Institution in Uttar Pradesh or any other training qualification recognised by the Government as equivalent thereto. 

(i) Mistress of Nursery School 

Bachelors degree from a University established by law in India or a degree recognised by the Government as equivalent thereto together with Certificate of teaching (Nursery) from recognized training institution of Uttar Pradesh or any other training course recognised by the Government as equivalent thereto and have passed teacher eligibility test conducted by the Government of Uttar Pradesh. 

(ii) Assistant Master and Assistant Mistresses of Junior Basic Schools 

A Bachelor's Degree from a University established by law in India or a Degree recognised by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate, Vishisht Basic Teacher's Certificate (B.T.C.) two years B.T.C. Urdu Special Training Course, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other Training Course recognised by the Government and equivalent thereto: 

Provided that the essential qualification for a candidate who has passed the required training course shall be the same which was prescribed for admission to the said training course. 

(ii) Assistant Master and Assistant Mistresses of Junior Basic Schools 

Bachelors degree from a University established by law in India or a Degree recognised by the Government as equivalent thereto together with any other training course recognised by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate (BTC), two years BTC (Urdu) Vishisht BTC and have passed teacher eligibility test conducted by the Government of Uttar Pradesh. 

After the issuance of the notifications dated 23.8.2010 under section 23(1), the qualifications for appointment of teachers of basic schools have to be regulated by qualifications prescribed by the academic authority. As noted above, the State has also framed Rules under section 28 of 2009 Act namely; U.P. Right of Children to Free and Compulsory Education Rules, 2011. Rule 15 of the said Rules contains heading "TEACHERS", which specifically provides that minimum educational qualifications for teacher laid down by an authority, authorised by the Central Government, by notification, shall be applicable for every school referred to in clause (n) section 2. Rules 15 and 16 which are relevant are quoted below: 

"15. Minimum qualification of teachers: 

Section 23 (1).- The minimum educational qualifications for teachers, laid down by an authority, authorized by the Central Government, by notification, shall be applicable for every school referred to in clause (n) section 2. 

16. Relaxation of minimum qualification: 

Section 23(2).-(1) The State Government shall estimate the teacher requirement as per the norms in the Schedule for all schools referred to in clause (n) of section 2 within the State. 

(2) If teachers possessing prescribed minimum qualifications are not available as estimated under sub-rule (1), then the State Government shall request the Central Government by 31st March, for relaxation of the prescribed minimum qualification. 

(3) The State Government shall take necessary action after the notification issued by the Central Government, for relaxation in the minimum qualification on the request under sub-rule (2). 

(4) The relaxation from minimum qualifications shall be for maximum period of five years from the commencement of the Act i.e. till 31st March, 2015, within such period the teachers appointed under the relaxed condition shall acquire the minimum educations qualifications prescribed under rule 15. 

(5) No appointment of teacher for any school can be made in respect of any person not possessing the minimum educational qualifications prescribed under rule 15 without the notification referred to in sub-rule (3)." 

Rule 15 which has been framed by the State under 2009 Act thus, clearly contemplates that educational qualifications for teachers as laid down by authority authorised by the Central Government shall be applicable. Thus, after issuance of notification under section 23(1), the qualifications of teachers are to be regulated by authority. The purpose of providing qualifications of teachers by notification under section 23(1) is for enforcing uniform qualifications throughout the country for appointment of teachers in basic schools. The 2009 Act enacted by Parliament is referable to Entry 25 List 3 of the Constitution of India. When an enactment is made by the Parliament on the same subject, any enactment of the State earlier existing which is also referable to Entry 25 List 3 has to give way to the Parliamentary enactment. Rule 15 of 2011 Rules as quoted above framed by the State clearly contains the aforesaid concept. Thus, what is enforceable is the notification dated 23.8.2010 regarding the qualification of teachers and any rule framed by the State under the 1981 Act under the State enactment has to give way. Further the State under 1981 Rules cannot provide for any qualification contrary to the qualification as laid down by the notification dated 23.8.2010. As noted above, Section 23(2) of the 2009 Act empowers the Central Government by notification to relax the minimum qualifications required for appointment as a teacher where a State doesn't have adequate institutions offering courses or training in teacher education. Section 23(2) is quoted below: