BIGGEST UPTET RELATED ALLAHABAD HIGH COURT TRIPLE BENCH DECISION
As Allahabd High court Triple Bench Decision is Very Large and Unable To Publish It on Blog at One Go.
Therefore I am Publishing Important Points -
Important Point -
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This Full Bench has been called upon to resolve the
controversy that has arisen out of a reference made by a learned single Judge
doubting the correctness of the judgment in the case of Prabhakar Singh and
others Vs. State of U.P. and others, 2013 (1) ADJ 651, relating to the
compulsion of passing the Teacher Eligibility Test as prescribed under the
Notification dated 23.8.2010 as amended on 29.7.2011 for appointments on the
post of an Assistant Teacher for an Elementary Basic School (classes I to V).
Even though there are three questions framed by us, the issue which requires a
resolution is the binding effect of the aforesaid Notification that has been
issued by the National Council for Teacher Education while prescribing a
minimum standard to be possessed by a candidate aspiring to become a Teacher of
elementary education.
To address the issue involved, we had heard the matter and
framed 3 questions as follows:-
"(a) What
does the phrase "minimum qualifications" occurring in Section 23 (1)
of the right of Children to Free and Compulsory Education Act, 2009 (the Act)
mean - whether passing the 'Teacher's Eligibility Test', is a qualification for
the purposes of Section 23 (1), and it insistence by the NCTE in the
Notification dated 23.8.2010 is in consonance with the powers delegated to the
NCTE under Section 23 (1) of the Act?
(b) Whether clause 3 (a) of the Notifications dated
23.8.2010 and 29.7.2011 issued by the NCTE under Section 23 (1) of the Act,
permits persons coming under the ambit of that clause to not undergo the
'Teacher's Eligibility Test', before they are eligible for appointment as
Assistant Teachers? What is the significance of the words "shall also be
eligible for appointment for Class-I to V upto 1st January, 2012, provided he
undergoes, after appointment an NCTE recognized six months special programme in
elementary education"?
(c) Whether
the opinion expressed by the Division Bench in Prabhakar Singh and others Vs.
State of U.P. and others, 2013 (1) ADJ 651 (DB), is correct in law?"
3. Sri R.A. Akhtar for the National Council for Teacher
Education has emphasized that the power of the Council is very much available
and the argument that it did not have the authority to prescribe the Teacher
Eligibility Test as a qualification is unfounded. Sri Singhal and Sri Akhtar,
therefore, relied on the guidelines dated 11.2.2011 as well as the
Notifications issued from time to time to urge that all the Notifications read
together with the Notification dated 23.8.2010 would leave no room for doubt
that the Teacher Eligibility Test is compulsory for all classes of Teachers,
who are seeking appointment in Schools, imparting elementary education without
exception.
At the national level a debate was going on and a Committee
under the Chairmanship of Prof. B.G. Kher recommended the incorporation of
Article 45 of the Constitution in the Chapter of Directive principle of State
policy which read as under:-
"Article 45-- The State shall endeavour to provide,
within a period of ten years from the commencement of this Constitution, for
free and compulsory education for all children until they complete the age of
fourteen years."
Article 45 as amended now reads as under:-
"Article 45. Provision for early childhood care and
education to children below the age of six years.--The State shall endeavour to
provide early childhood care and education for all children until they complete
the age of six years."
And Article 21-A is quoted herein below:-
"21-A. Right to education.-- The State shall provide
free and compulsory education to all children of the age of six to fourteen
years in such manner as the State may, by law, determine."
Teachereligibility test is an additional norm laid down by the Academic Authority which according to the decision of Preeti Srivastava's case serves the definition of qualification. The contention therefore raised by Sri Agrawal that the teacher eligibility test is not a qualification has to be rejected. It is not a part of something which is to be possessed at the minimum. It has to be possessed in addition to the educational and training qualification
To further understand as to why the teacher eligibility test
is a qualification one can refer to the guidelines dated 11th February, 2011
where the background and rationale for conducting the said test has been
referred. We may mention at the outset that the said guidelines had totally
escaped the notice of the division bench and its ingredients while proceeding
to treat the teacher eligibility test to be not necessary for the candidates
falling under Clause 3 of the Notification dated 23.8.2010. The guidelines
provide that persons to be recruited as teachers should possess the essential
aptitude and ability to meet the challenges of teaching at the elementary
level. The consequences were explained by the rationale that it would bring
about national standards and bench mark of teacher quality in the recruitment
process. It would further induce teacher education institutions to improve
their performance standards and a positive signal to all stake holders that the
Government lays special emphasis on teacher quality. This rationale therefore
justifies the teacher eligibility test as an additional norm apart from the
educational and training qualifications.
This is fortified by Clause 5 of the guidelines dated
11.2.2011 which says that a person who has acquired the academic and
professional qualification under the notification dated 23.8.2010 shall be
eligible for appearing in the teacher eligibility test. This Clause leaves no
room for doubt that all classes of candidates possessing the academic and
professional qualifications would be eligible to appear in the teacher eligibility
test and therefore it is a norm which is compulsory for all classes of teachers
including those who fall within Clause 3 of the notification dated 23.8.2010.
The next is the structure and content of the test which has
five sections in relation to examination for Classes 1 to 5 with which we are
presently concerned. These five sections are Child Development and Pedagogy,
Language 1 - focussing on proficiency relating to medium of instruction,
Language 2- an optional language, Mathematics and Environmental Studies. The
test items for the last two subjects should be correlated with concepts of
problem solving ability and pedagogical understanding of the subject.
At this stage the importance of Child Development and
Pedagogy deserves to be emphasised in the backdrop of the social environment
that requires a mention when the province is facing not only a shortage of
numbers, but an acute shortage of duly qualified and educated teachers at the
primary level.
Our court is fully aware of the huge problems that are being faced in this branch of elementary education with the influx of temporary methods of providing instruction through teachers like Shiksha Mitra and Preraks. In this background, the emphasis of quality teachers attains more importance.
The subject of Child Development and Pedagogy assumes importance and consequently a teacher eligibility test no longer remains a mere eligibility test but becomes the most essential qualification to be possessed for being appointed as a teacher
Many children are victims of apathy and wrongly motived parental treatment. Their emotional and skilful assessment, and proper treatment, has to be handled within the clinic of an elementary school where the sole physician is none else than a trained teacher. A candidate possessing a mere educational or a training qualification without any genuine attribute may not necessarily be a good teacher.
Guru Brahma Guru Vishnu Guru Devo Maheshwaraha Guru Saakshat
Para Brahma Tasmai Sree Gurave Namaha"
It may be emphasised that there is no challenge raised to such appointments against rules, but the law is certain that appointment de-hors the rules cannot be said to be valid. After the enforcement of the notification dated 23.8.2010 every candidate aspiring to become a teacher of elementary education in any of the institutions defined under the 2009 Act has to be possessed of the qualifications prescribed therein. The intention therefore of the legislature is clear that no teacher without such a qualification can be allowed to continue as a teacher in the institution.
We wish to clarify that the binding effect of the notifications and the guidelines is such that the weightage which is contemplated under the guidelines dated 11th February, 2011 cannot be ignored. The minimum score that is required of a candidate is 60% to pass the teacher eligibility test. A concession of 5% has been made in favour of the reserved category candidates including the physically challenged and disabled persons.
This norm therefore cannot be diluted. Apart from this, the State Government has to take notice of the fact that weightage has to be given in the recruitment process as well. It is for the State Government to suitably adopt the said guidelines and we do not wish to add anything further at this stage as we are only concerned with the essentiality of the qualification of the teacher eligibility test to be possessed by any candidate aspiring to be appointed as a teacher.
We wish to make it clear that the law has to be followed in
the manner in which it has been legislated. It cannot be diluted on account of
the inaction of the State. In such circumstances all teachers whose appointment
relate to the period after 23.8.2010 have to be possessed of TET.
Coming to the arguments advanced by Sri Ashok Khare, learned
Senior Counsel, who contends that the entire judgement should be overruled on
both counts, we may make it clear at the outset that the finding in the first
part of the reported judgment contained in paragraph Nos. 34 to 53 thereof
relate to the stand of all such candidates, who have acquired the academic and
the training qualifications prior to 23.8.2010, to urge that they should be
appointed in the same fashion as was being done earlier without any compulsion
of passing the Teacher Eligibility Test. They are in essence seeking
appointment by virtue of an interpretation of clause 5 of the Notification
dated 23.8.2010 to contend that since the Advertisement for the training
qualifications had already been issued earlier, and the same amounts to
initiation of the recruitment process, and therefore, such candidates should be
appointed without undergoing the test. A similar argument has been advanced by
Sri Arvind Srivastava and Sri Alok Mishra on this issue.
We are unable to find any error in the reasoning contained
in Paras 34 to 53 of the Division Bench in Prabhakar Singh's case on this count
for the reasons given hereinabove and hereinafter and we, therefore, approve
the judgment to the aforesaid extent.
Sri Khare has then proceeded to expand his argument in
relation to the unsure status of the cut off date of the applicability of the
Notifications. We are not impressed by this argument inasmuch as we have
already concluded herein above that the power under Section 23 (1) of the 2009
Act, overrides the field on this aspect and once the qualifications have been
fixed in exercise of such powers, the same cannot be avoided by the State
Government by any delay of implementation of such qualifications. The State has
no choice but to apply the Notification dated 23.8.2010 with immediate effect.
Sri Khare has then advanced his submissions on some issues
more but we do not find it necessary to answer the said arguments as they do
not come squarely within the reference which has to be answered by us. We are,
therefore, confining ourselves basically to the questions referred and the
correctness of the judgment in Prabhakar Singh's case in relation thereto.
We have heard Sri Arvind Srivastava for those candidates who
are seeking impleadment and contend that they were candidates of special BTC
course 2007 and 2008 entitled to be appointed as Teachers along with their
counterparts, who have been offered appointment without having passed the
Teacher Eligibility Test. The Intervener Application has been filed by
Prabhakar Singh and another in Writ Petition No.12915 of 2013 filed by Prit Pal
Singh, in which the present reference has been made.
The contention of these applicants is that they were already
fighting the litigation pertaining to their qualification before the Supreme
Court even though they were applicants pursuant to the Advertisements dated 17.7.2007
and 19.1.2008. The judgment of the Apex Court in favour of these candidates in
the case of Bhupendra Nath Tripathi was delivered in October 2010 whereby they
were also held to be eligible as they were having the training qualification
which were acquired from the outside the state.
The candidates of the same batch, whose qualifications were
not doubtful, had already been appointed and were also appointed after the
Notification dated 23.8.2010. In the aforesaid circumstances, the interveners
cannot be discriminated and they were also entitled for being appointed without
having passed the Teacher Eligibility Test.
To justify their stand the first argument raised by Sri
Srivastava is that such applicants, who had applied against the vacancies of
2007, would continue to be considered for appointment as Assistant Teacher
under the Rules that were existing then. The qualifications have, therefore, to
be seen on the date of advertisement that was then issued for the purpose of
inviting candidates for training of special BTC course. They, therefore, insist
that the advertisement that was made prior to 23.8.2010 for imparting the
special BTC Training course would govern the process of appointment of such
candidates including the petitioners as the vacancies were existing then.
The argument, therefore, appears to be that if the vacancy
relates to the advertisement for training prior to 23.8.2010 then the said
vacancy will have to be filled up under the old rules and the method of
recruitment as was then existing and not by the qualifications now prescribed
under the Notification dated 23.8.2010.
The next contention is that candidates who have not passed
the Teacher Eligibility Test, have been appointed even after 23.8.2010. As
already indicated by us, if the process had not begun by any advertisement as
required under Rule 14, the petitioners cannot claim parity with such
candidates. They will, therefore, have to undertake the Teacher Eligibility
Test as, in fact, they have not entered the recruitment process or appointment
as yet. The allegation that the State cannot adopt two yardsticks is not the
issue inasmuch as the point to be resolved is as to whether the Teacher
Eligibility Test is a necessary qualification or eligibility condition for the
appointment of an Assistant Teacher in an elementary School after the
Notification dated 23.8.2010 or not. If the State has proceeded to act contrary
to rules, then the same cannot be a ground for claiming equality under Article
14 of the Constitution of India. The action of the State which is not in
accordance with law or was an action under the transitory phase of the issuance
of the rules and adoption of the Notification dated 23.8.2010 cannot enure any
advantage to the interveners. The contention that rights had accrued in their
favour prior to 23.8.2010, therefore, cannot be supported in law in the light
of the observations made herein above.
The contention of Sri Srivastava that the candidates have a
legitimate expectation also cannot be accepted as the legitimacy of an
expectation has to be founded on the basis of some right. The letters of the
Secretary of the Board, which have been relied upon by the learned counsel for
the petitioners, are administrative communications which cannot over ride the
effect of Rule 14. If a promise was made by the State that the appointment will
be made as soon as the training is completed, the same would not mean that rule
14 has not to be complied with. The letter issued by the Basic Education Board
or by the Secretary or the Director cannot be treated to be either an executive
instructions or Government Order that may be enforced as a matter of law over
and above Rule 14.
Sri Srivastava then proceeded to give another turn to the
argument by contending that the Notification dated 23.8.2010 issued by the
National Council for Teacher Education was unauthorised and did not have the
force in law inasmuch as the Central Government issued the authorisation on
1.4.2010 whereby the National Council for Teacher Education was empowered to
lay down the minimum qualification as the academic authority.
The National Council for Teacher Education had issued the
norms of minimum qualification on 31.3.2010 which was prior to the
authorisation under the Notification dated 1.4.2010. Sri Srivastava, therefore,
submits that if the Notification for fixing the minimum qualification had
arrived one day earlier to the authorisation under the Act itself, the same has
no legal force. The argument at first flush appears to be attractive but on a
perusal of Section 22 of the General Clauses Act, 1901, the said argument has
to be rejected outright. The authorisation had come on 1.4.2010 but the process
of authorising the National Council for Teacher Education had commenced and it
was issued one day earlier i.e. on 31.3.2010. The same was, however, published
on 5.4.2010 i.e. after the authorisation had been issued by the Central
Government. The norms laying down minimum qualifications, therefore, would come
into effect from 5.4.2010 and not from 31.3.2010. It stands saved under Section
22 of the General Clauses Act as referred to herein above. This aspect is also
supported by a couple of judgments of the Apex Court cited by the learned
Counsel for the Central Government and the State reference whereof has been
noticed in connection with Section 23-A of the U.P. General Clauses Act in the
Division Bench judgment, State of U.P. Vs. Mahesh Narain, 2008 (71) ALR 926.
The next contention raised that the minimum qualifications
fixed in addition to Rule 8 of the 1981 Rules do not in any way take away the
impact of the existing qualification under Rule 8 and, therefore, such
candidates, who possess the qualification as prescribed under Rule 8, cannot be
excluded. Needless to mention that the Rules have already been amended and the
Teacher Eligibility Test also forms part of the amended Rules under the 1981
Rules relied upon by the learned counsel. Even prior to the amendment of Rule
8, the contention that there is no prohibition of considering the candidates
without the Teacher Eligibility Test is a misconceived argument. The rules,
which had not been amended, were obviously not in accordance with the norms
prescribed by the Central Government under the 2009 Act. Thus, the State
Government cannot afford to ignore the said Rule or make appointment of
candidates, who were not possessed of such qualifications. The argument that
the word "minimum" does not mean only, is a misconceived argument inasmuch
as, minimum means the least that has to be possessed. It does not mean that
other qualifications cannot be prescribed or if prescribed cannot be read in
addition to minimum qualification. The argument, therefore, raised by Sri
Srivastava also does not come to his aid and in our opinion the Teacher
Eligibility Test has to be passed by a candidate before he seeks appointment of
Assistant Teacher after the promulgation of the Notification dated 23.8.2010.
Another argument advanced is that the State Government framed
Rules under Section 38 of the 2009 Act on 27.7.2011 which indicates that there
was a requirement to frame Rules in view of the provisions contained under
Section 23 of the Act or else they would have been automatically covered. This
argument is also misconceived inasmuch as the definition of the word
"Institution" in the 2009 Act has been lost sight of by the learned
counsel which includes all the Institutions as are indicated under the 2009
Act.
Sri Srivastava then contends that the judgment in the case
of Prabhakar Singh causes discrimination between the candidates who have the
special BTC training course and those who are having only BA and B.Ed.
qualifications by exempting the latter class from appearing in the Teacher
Eligibility Test. We have already indicated above that this part of the
judgment in Prabhakar Singh's case deserves to be overruled as no such
exemption has been granted by the provisions under the Notification dated
23.8.2010 as amended later on. In the aforesaid circumstances, this argument
also deserves to be rejected.
One of the crucial arguments on the anvil of Article 14 of
the Constitution that has been advanced is that the judgment under reference
creates two classes of Teachers and the State Government has also discriminated
one category of candidates namely those who were entitled to be appointed even
prior to that. This argument has been advanced on the strength of the admitted
position that candidates without having passed the Teacher Eligibility Test
appointed even after 23.8.2010 belong to the category of special BTC course of
2007 and 2008 and also compassionate appointees.
The response of the State Government is that some
appointments have been cancelled but so far as those teachers who have already
been appointed and have been working even though they have not passed the
Teacher Eligibility Test, their chapter should be treated as closed. Sri C.B.
Yadav, learned Addl. Advocate General, has categorically stated this on
instructions from the State Government. Thus, there exist a certain class of
Teachers, who have been appointed after 23.8.2010 and do not possess the
Teacher Eligibility Test qualification. They have also been appointed under the
old prevalent practice of not facing any fresh selection after advertisement under
Rule 14 and have been appointed immediately after training. They were appointed
against the vacancies which were far above than the available number of
candidates and, therefore, their appointment was almost a foregone conclusion.
Since this issue has been advanced time and again and has
been canvassed by both the sides, we may put on record that the issue of law as
referred has been categorically laid down by us and the appointments have to be
made only in accordance with the aforesaid position of law. We do not wish to
add anything further leaving the question raised above open to be debated and
decided in appropriate cases as this is not a point of reference.
The questions that have been therefore framed by us are
answered as follows:-
1. The teacher eligibility test is an essential
qualification that has to be possessed by every candidate who seeks appointment
as a teacher of elementary education in Classes 1 to 5 as per the notification
dated 23.8.2010 which notification is within the powers of the NCTE under
Section 23(1) of the 2009 Act.
2. Clause 3(a) of the notification dated 23.8.2010 is an
integral part of the notification and cannot be read in isolation so as to
exempt such candidates who are described in the said clause to be possessed of
qualifications from the teacher eligibility test.
3. We approve of the judgment of the division bench in
Prabhakar Singh's case to the extent of laying down the interpretation of the
commencement of recruitment process under Clause 5 of the notification dated
23.8.2010 but we disapprove and overrule the ratio of the said decision in
relation to grant of exemption and relaxation from teacher eligibility test to
the candidates referred to in Clause 3 (a) of the notification dated 23.8.2010,
and consequently, hold that the teacher eligibility test is compulsory for all
candidates referred to in Clause 1 and Clause 3 (a).
Let the judgement be accordingly placed before the
respective benches for appropriate orders.
Order Date: 31.05.2013
Irshad
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Most Important Points Which Arises From This Decision is -
We wish to clarify that the binding effect of the notifications and the guidelines is such that the weightage which is contemplated under the guidelines dated 11th February, 2011 cannot be ignored. The minimum score that is required of a candidate is 60% to pass the teacher eligibility test. A concession of 5% has been made in favour of the reserved category candidates including the physically challenged and disabled persons.
This norm therefore cannot be diluted. Apart from this, the State Government has to take notice of the fact that weightage has to be given in the recruitment process as well. It is for the State Government to suitably adopt the said guidelines and we do not wish to add anything further at this stage as we are only concerned with the essentiality of the qualification of the teacher eligibility test to be possessed by any candidate aspiring to be appointed as a teacher.
We wish to make it clear that the law has to be followed in the manner in which it has been legislated. It cannot be diluted on account of the inaction of the State. In such circumstances all teachers whose appointment relate to the period after 23.8.2010 have to be possessed of TET.
The questions that have been therefore framed by us are answered as follows:-
1. The teacher eligibility test is an essential qualification that has to be possessed by every candidate who seeks appointment as a teacher of elementary education in Classes 1 to 5 as per the notification dated 23.8.2010 which notification is within the powers of the NCTE under Section 23(1) of the 2009 Act.
2. Clause 3(a) of the notification dated 23.8.2010 is an integral part of the notification and cannot be read in isolation so as to exempt such candidates who are described in the said clause to be possessed of qualifications from the teacher eligibility test.
3. We approve of the judgment of the division bench in Prabhakar Singh's case to the extent of laying down the interpretation of the commencement of recruitment process under Clause 5 of the notification dated 23.8.2010 but we disapprove and overrule the ratio of the said decision in relation to grant of exemption and relaxation from teacher eligibility test to the candidates referred to in Clause 3 (a) of the notification dated 23.8.2010, and consequently, hold that the teacher eligibility test is compulsory for all candidates referred to in Clause 1 and Clause 3 (a).
Let the judgement be accordingly placed before the respective benches for appropriate orders.
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