UPTET : Allahabad Highcourt Double Bench Hearing Details on 8th March 2013

UPTET : Allahabad Highcourt Double Bench Hearing Details on 8th March 2013

MUST READ - Contains Many Important Points for TET is MUST OR Not 


HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.
Court No.30

Civil Misc. Writ Petition No. 12908 of 2013
Shiv Kumar Sharma Vs. State of U.P. and others

****
Hon'ble A.P. Sahi, J

Heard Sri Adarsh Bhushan, learned counsel for the petitioner, and Sri R.B. Yadav for the respondents.

The legal submissions raised by Sri Adarsh Bhushan, learned counsel for the petitioner, have awakened a point of dissent to the ratio of the decision of a division bench while disposing of a bunch of Special Appeals in the case of Prabhakar Singh and others Vs. State of U.P. and others, decided recently on 16.1.2013 and reported in 2013 (1) ADJ 651. The theme of the controversy that has allowed this debate to commence is "as to whether a candidate expecting to get appointed as an Assistant Teacher in a government run Primary School (Class I to V) has to compulsorily clear the U.P. Teacher Eligibility Test as a precondition to his consideration as such" or entitled to any relaxation as interpreted by the Division Bench.

The petitioner is a victim of circumstances. He lost his father who died-in-harness while working as a Headmaster on 3.6.2011 in a Primary School of District Agra. The petitioner under the rules, being entitled for a compassionate appointment, applied and was appointed as an Assistant Teacher on 6.8.2011 by the District Basic Education Officer, Agra. The petitioner, according to the averments, was possessed of the educational qualifications as prescribed, but not having the training qualifications, sought permission to complete the same that was also extended on 28.3.2012. While undergoing training , the petitioner was served with a show-cause as to whether he has cleared the UPTET or not which is compulsory as per the Circular of the Basic Education Board dated 12.6.2012. The petitioner gave a reply that the rule of passing the TET could have been complied with, had this condition been imposed in the letter of appointment. In the absence of any such stipulation, the petitioner cannot be compelled to forego his appointment on that score. The impugned order dated 31.12.2012 cancelling the appointment of the petitioner has been passed on the ground taken in the show-cause as the petitioner has neither appeared nor cleared the UPTET. For this relevant Government Orders of the State in compliance of the Notification issued under the Right to Compulsory Education Act, 2009 and the 2011 Rules framed thereunder have been relied on. This issue of passing the UPTET had been engaging the attention of the Court in different writ petitions where also the same controversy was raised and they faced dismissal before the learned single Judges. A large number of Special Appeals were filed and after being clubbed together were decided by the Division bench in Prabhakar Singh's case (supra). 

The petitioner, taking aid of the said judgment, delivered after the impugned order was passed, has now came up assailing the action of cancellation on the basis of the ratio of Prabhakar Singh's case. If the argument is accepted, then the judgment squarely covers the case at hand and the petition has to succeed, but on hearing the learned counsel and perusing the judgment relied on, I would humbly vary in my opinion for the reasons set out herein under. The decision in my modest assessment on this issue requires a reconsideration as, in short, no exception or relaxation can be carved out for not passing the test on a plain reading of the Notifications and provisions under consideration. Having extensively gone through the decision, the directions issued in para 75 thereof are quoted hereunder:-

"In the result all the Special appeals are disposed of with the following directions: 

(i)The appellants/other eligible candidates who have passed BA/BSc with 50% and are B.Ed being fully eligible for appointment as Assistant Teacher to teach Classes I to V as per Clause 3 of the notification dated 23rd August, 2010, as amended from time to time, are entitled for consideration for their appointment on vacant posts of Assistant Teachers in Classes I to V. The State authorities including the concerned District Basic Education Officers are directed to consider the claim of such persons while considering the appointment on the post of Assistant Teacher in institutions to teach Classes I to V. 

(ii)The State is directed to issue a corrigendum so that all eligible candidates as per clause 3 of the notification dated 23.8.2010 as amended i.e. candidates having 50% marks in B.A./B.Sc. with B.Ed. should also be permitted to participate in the ongoing process of appointment of trainee teachers. At least 15 days time be allowed to submit applications by above mentioned candidates. 

(iii)The prayer of the appellants possessing BTC/Special BTC qualifications obtained after 23.8.2010 to issue direction to appoint them giving benefit of paragraph 5 of the notification dated 23rd August, 2010 cannot be accepted. " 


To appreciate the point of reconsideration, it will be apt to narrate a short background of the legal provisions that reflect on the controversy. Appointments to Primary Schools in the State are governed by the provisions of the Basic Education Act, 1972, read with the U.P. Basic Education (Teachers) Service Rules, 1981. Rule-8 thereof, as amended up to 9.11.2011, provides the prescription of educational and training qualifications. The rule includes the Basic Teachers Certificate (BTC) apart from other similar and equivalent qualifying Certificates. The State was facing a crunch in the field of qualified and trained teachers, the primary cause whereof was an acute shortage of approved Training Centres and Colleges, as a result whereof the vacancies kept on increasing. The State Government to cope up with this shortage issued Government Orders from time to time to run more Special BTC courses of particular durations that were also granted equivalence for the purpose of appointment as Assistant Teachers.

Another peculiar fact that is to be noted is that since the gap between the vacancies and non-availability of adequate number of trained candidates, appointments under the 1981 Rules almost became a routine upon completion of training without following the procedure under Rule 14 thereof that requires an advertisement followed by selection. This practice was continuing since decades.

To improve the standard and quality of primary education, the Parliament enacted the NCTE Act of 1993 for regulating the norms of institutions that were involved in the grooming of future teachers. Regulations were framed thereunder in 2001 that enunciate training qualifications.

The competence of such Legislation emanates from Entry 25 of List III under the Seventh Schedule of the Constitution. Thus, the State and the Centre, both can legislate and obviously the Central Legislation would prevail if it occupies the field.

Then comes the Constitutional reform introduced through the enforcement of Article 21-A of the Right to Free and Compulsory Education up to a certain age. This led to the passing of the Right to Free and Compulsory Education act, 2009, by the Parliament followed by the 2011 Rules framed in the State of U.P. This act defined the NCTE as the Academic Authority empowered to fix qualifications and conditions for appointment as a teacher in a Basic School from Class I to VIII. Section 23 of the 2009 Act, that is the hub of discussion is extracted here under:-

"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 for 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." 


It is in exercise of the said powers that the NCTE issued the Notification dated 23.8.2010 that gives rise to this deliberation quoted here under:-

"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.El. 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 Text (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.El. 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)
AND

(b) Pass in the Teacher Eligibility Text (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 B.A/B.Sc. with at least 50% marks and B.Ed qualification shall also be eligible for appointment for class I to V up to 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.

4. Teacher appointed before the date of this Notification:- The following categories of teachers appointed for classes I to VIII prior to date of this Notification need not acquire the minimum qualifications specified in Para (1) above,

(a) A teacher appointed on or after the 3rd September, 2001 i.e. the date on which the NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 (as amended from time to time) came into force, in accordance with that Regulation. Provided that a teacher class I to V possessing B.Ed qualification, or a teacher possessing B.Ed. (Special Education) or D.Ed. (Special Education) qualification shall undergo an NCTE recognized 6 month special programme on elementary education.

(b) A teacher of class I to V with B.Ed. qualification who has completed a 6 month Special Basic Teacher Course (Special BTC) approved by the NCTE;

(c) A teacher appointed before the 3rd September, 2001, in accordance with the prevalent Recruitment Rules.

5. Teacher appointed after the date of this Notification in certain cases:- Where an appropriate Government, or local authority or a school has issued an advertisement to initiate the process of appointment of teachers prior to the date of this Notification, such appointments may be made in accordance with the NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 (as amended from time to time)."


The Division Bench went on to answer the second question posed by it from paragraph No.54 of the judgment resting its conclusions on a purposive construction logic to justify the exclusion of TET for appointment of Assistant Teachers in class I to V. It is this part of the judgment that requires a reconsideration for the reasons indicated below.

The reason that appears to have weighed with the bench is that clause-3 of the Notification dated 23.8.2010 is a substantive provision that is in addition to Clauses 1 and 2. It has further held that it is an exception to the qualification provided in clause 1. Thus, the requirement of TET in Clause 1 stands ruled out by this interpretation for applying clause-3. The Bench has proceeded to construe clause-3 as if it stands independent of clause 1 and has applied the harmonious rule of interpretation to read the construction of the said Notification. The argument advanced by the State was rejected on the logic that a plain meaning has to be given to clause-3 and that "passing of the eligibility test" would be adding words to the said clause 3 that was never intended. The amendment to the 1981 Rules introducing the qualification of TET have accordingly been held to be contrary to the qualification envisaged under Section 23 (1) of the 2009 Act. The subsequent Notifications including the Notification dated 10.9.2012 extending the period of relaxation have been co-related with clause-3 to give it an independent status and forming a separate class with only the qualifications limited under clause-3. The reasoning is spread over in Paras 54 to 73 to support the said conclusions.

With the utmost respect to the ratio of the decision, clause-3 does not exist independent of clause-1. It nowhere excludes the passing of the eligibility test. It is for this reason that it was not required to be mentioned, and was not mentioned, in clause-3 separately. Clause-3 begins with the topical introduction of training to be undergone. It is to be clearly understood that broadly there are three requirements for appointment. First is the educational qualification. The second is the training qualification and the third hurdle that matures thereafter to be crossed is the Teacher Eligibility Test.

The relaxation that appears to have been introduced and subsequently extended is in respect of acquiring the first two, particularly training. The reason was non-availability of trained teachers. The relaxation was to facilitate training qualifications. It was not to eliminate the Teacher Eligibility Test. The purpose to undergo this Test is to ensure that the best candidates who are eligible are screened before they are appointed. It is for this reason that every Notification in relation thereto clearly recites that no candidate can be offered appointment unless he clears the Teacher Eligibility Test. The absence of any such words in clause-3 does not obviate the passing of the test. A plain reading of clause-3 would leave no room for doubt that it only facilitates acquisition of training that relates to the qualifications prescribed under the Rules. The exemption to the selection and appointment through advertisement, where the process of recruitment has commenced prior to the notification has been extended which does not eliminate the passing of eligibility test thereafter.

Apart from this, the word "AND" has been used before the requirement of Teacher Eligibility which clearly entails it to be an independent additional requirement to be possessed by a candidate before appointment in respect of all class of teachers for classes I to VIII. To construe it otherwise would be to loose sight of the object and purpose of the Teacher Eligibility Test. The capacity and efficiency to teach primary classes is required to be assessed and appointment is to be not offered on mere possession of qualification.

This in a way supplements the selection of a candidate through a process as envisaged under Rule 14 of the 1981 Rules. It is, therefore, nowhere in contradiction to the notification nor is the amendment in Rule 8 anyway contrary to the notification issued under Section 23 of the 2009 Act. Once the Division Bench construes clause-3 to be in addition to clause-1, then it would be an anomaly to read it as an exception.

The very purpose for ensuring excellent standards would be ruined if teachers are allowed to be appointed in the same routine way as was being done before. This would be overloading the system with lesser qualified and inefficient teachers that would be a burden and against the clear intention of the legislature and rule making authority to ensure the benchmark prescribed. The concession, therefore, granted by the Division Bench deserves to be reconsidered as it appears to be contrary to the purpose for which the Test was introduced. 

In the field of primary education, the achievement of excellence is the objective for which the possession of best tools is desirable. The deficiencies became subject matter of a report that has been recently brought before the Apex Court in a case where the department of School Education, Ministry of Human Resources has highlighted the urgent need of generating qualitative Teacher Training Schools and improving the selection process for a better standard of teaching. The problems of good teaching, organisational skills and a long standing experience in the field of education has been vividly described by English authors like Gervase Phinn and Jack Sheffield who drawing from their experience through an interaction with students and teachers alike have thrown enough light on areas of improvement, that includes the approach of good teaching and selection of good teachers in Basic Schools, even in developed countries like England.

The National Council for Teacher Education promulgated a set of Guidelines on 11.2.2011 for implementing the Notification dated 23.8.2010. The same runs into several pages and have been brought to the notice of the Court by Sri C.B. Yadav, learned Addl. Advocate General and it is upon reading these Guidelines that my views stand confirmed about the real purpose and intent of conducting a Teacher Eligibility Test. These Guidelines do not appear to have been noticed nor have they been referred to in the Division Bench judgment. In order to gather the intention of the Legislation that was sought to be enforced, the said Guidelines are a clear indicator that no exemption or relaxation was ever intended so as to segregate clauses 1 and 3 of the Notification dated 23.8.2010. To my mind, the Guidelines comprehensively illustrate the true intention and allay any doubt about the same. The Guidelines are so extensive that they conclude the debate on the issue of intention of carrying out and applying the Teacher Eligibility Test for all classes from class I to VIII. The dispensation, therefore, as suggested by the Division Bench would be clearly contrary to the intentions so expressed by the Apex Academic Authority namely the National Council for Teacher Education. There is no rule or notification to the contrary promulgated either by the Central Government or by the State Government. To infer a contrary intention would be depriving the legislation of its life.

The relaxation has to be understood in terms of sub-section (2) of Section 23 of the 2009 Act where the opening words make it clear that such provisions of relaxation are where there are no adequate facilities of training and teachers are not available that the minimum qualification can be relaxed. This power does not relax the passing of TET exams. The entire emphasis in all the notifications and provisions is on the passing of the TET exams over and above the qualifications or relaxations prescribed, but there is no intention to exclude the same. The golden rule of plain reading for interpreting the provisions deserves to be adopted keeping in view Heydon's rule as there does not appear to be any ambiguity. It is not a case of any thing relevant having been omitted deliberately to provide relaxation. The requirement of passing the Teacher Eligibility Exam is not controlled by clause-3. Rather clause-3 is subject to clause-1. The provision does not get stamped out or obliterated. It is not abandoned in any way on a combined reading of the provisions. To conclude that it is disconnected with clause-3 would be to snap the umbilical cord that tethers the main object of strict scrutiny of candidates. There is no intention to grant immunity from TET Exams as observed by the Division Bench. The life and intent of clause-1 cannot be severed by its physical absence in clause-3. This is not a matter of simply having a different opinion but of the correct interpretation of the provisions. The absence of a mandate of TET exams in clause-3 does not grant an immunity as clause-1 survives with its rigour together with clause 3. There cannot be, therefore, a second opinion on the interpretation of a combined reading of the provisions. The Eligibility Exams are like a Green Card for securing appointment.

From a perusal of the Division Bench judgment, it appears that petitioners therein were only praying that they should not be compelled to pass the test. They do not appear to have challenged or even doubted the intention of the Notification dated 23.8.2010 on the ground of any inconsistency between clause I and clause 3 thereof. They simply wanted a protection, rather an exemption, on the ground that their selection and process of recruitment had already commenced prior to the Notification and, therefore, they should not be compelled to face the TET. The logic of holding the Eligibility Test does not appear to have been advanced as an argument. Once there was no dispute as to the intention to hold the test for all teachers for class I to VIII alike, the reasoning of the decision appears to be alien to the cause raised.

Instead of bringing consistency, the harmony is shattered by an anomaly of creating two classes of teachers - one who possesses TET and those who sail through without any test. The "superior purpose" of having the best teachers would be lost. The statute has to be read as a whole in its context without divorcing the purpose of clauses 1 and 3 read together. This includes a regard to the subject and objects of the law and also to the consequences of an interpretation. The court cannot limit its vision bereft of the circumstances that led to the framing of the law. In view of the discussions aforesaid, I am unable to persuade myself to follow the ratio of the decision in Prabhakar Singh's case (supra) to the extent of the answer given by the Bench in relation to the second issue as dealt with in Paras 54 to 75 of the reported judgment. The same does not appear to lay down the law correctly in my humble estimation and requires a reconsideration.

I, therefore, for the reasons above mentioned consider it necessary that the judgment in Prabhakar Singh's case (supra) be referred to a larger Bench for an authoritative pronouncement in terms of Chapter V Rule 2 (ix) (b) read with Rule 6 of the Allahabad High Court Rules 1952.

Let the papers be placed before Hon'ble the Chief Justice for appropriate orders with a request that the matter involves the selections of teachers in primary schools through out the State and an early disposal of the matter will benefit the litigant and the State equally. 

Since the matter involves the interpretation of a Notification issued under a Central Act, let the Union of India, Ministry of Human resources, New Delhi, through its Secretary and the National Council for Teacher Education, New Delhi, through its Member Secretary be impleaded by the learned counsel for the petitioner as Respondent Nos. 5 and 6 respectively within a week and serve a copy of the petition on their counsel informing them about the passing of this order in writing.

Dt. 8.3.2013
Irshad

Source : http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=2433485