Final Decision of Allahabad Highcourt for recruitment of 72825 Teachers in Basic Education Dept. PART 5

Final Decision of Allahabad Highcourt for recruitment of 72825 Teachers in Basic Education Dept.

PART -5

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Importance of Education.
These appeals relates to filling up of 72,825 posts of Assistant Mater/Mistress in Junior Basic Schools in the State of U.P. Although, the above posts were advertised on 30.11.2011, but for the last about 2 years, neither the selection nor appointment could be completed due to one or the other reason.

Education plays a fundamental role in development of a society and nation. Imparting education to its children is of paramount importance to every society and nation. Development of a child is directly dependent on the quality of education which he or she receives in the beginning of life. In a welfare State, the paramount responsibility is of the State to ensure that all children are provided a quality education to enable them to develop into a good citizen for all round progress of society and nation.

Earl Warren, CJ of U.S. Supreme Court in Brown Vs. Board of Education 347 U.S. 483 (1954) emphasised the right of education in the following words:

"Today, education is perhaps the most important function of State and Local Governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment."

Relevant Constitutional and Statutory Provisions.
Part IV of the Constitution of India incorporated a directive principles of State Policy. Article 45 of the Constitution is quoted below:-

"45. Provision for free and compulsory education for children.- 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."

The right to education has been accepted as a fundamental right. By Constitution (Eighty-sixth Amendment) Act, 2002, Article 21A has been inserted in the Constitution which is to the following effect:

"21A-Right to education. The State shall provide free and compulsory eduction to all children of the age of 6 to 14 years in such manner as the State may, by law, determined".
In the State of U.P., the primary education was imparted through local bodies namely: Zila Parishad in rural areas and municipal Boards in urban areas. The administration of education at above level was not satisfactory and was deteriorating day by day. The Government on public demand took immediate steps for improving the education. The State Government took control of the primary education in its own hand for reorganising, reforming and expanding the same. With the above object the Uttar Pradesh Basic Education Act, 1972 was enacted and a Board namely: Uttar Pradesh Board of Basic Education was constituted under Section 3 of the Act. The rules have been framed under the Act, 1972 by the State namely: Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 providing for cadre, qualification, method of recruitment and other connected matters.

After Constitution (Forty-two amendment) Act, 1976, Entry 25 List III of 7th schedule of the constitution is as follows:

"25.    Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour."

The Parliament enacted the National Council for Teacher Education Act, 1993 to provide for the establishment of a National Council for Teacher Education with a view to achieve planned and coordinated development of the teacher education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher education system and for matters connected therewith. Section 12 enumerates functions of the council. Section 12 enumerates various functions of the council. Section 12 sub-clause (d) is as follows:

"12.    FUNCTIONS OF THE COUNCIL

It shall be the duty of the Council to take all such steps as it may think fit for ensuring planned and co-ordinated development of teacher education and for the determination and maintenance of standards for teacher education and for the purposes of performing its functions under this Act, the Council may -

(a) ........

(b) ........

(c) ........

(d) lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognised institutions."


The Parliament for achieving the goal of providing free and compulsory education to all children enacted The Right of Children to Free and Compulsory Education Act, 2009, (hereinafter called the "Act, 2009"). Section 8(a), (d) and (g) provide as follows:

"8:Duties of appropriate Government.- The appropriate Government shall--

(a) provide free and compulsory elementary education to every child:

(b) .....................

(c) ....................

(d) provide infrastructure including school building, teaching staff and learning equipment;

(e) ....................

(f) ...................

(g) ensure good quality elementary education conforming to the standards and norms specified in the Schedule."

Section 23 of the Act, 2009 provides for qualifications for appointment and terms and conditions of service of teachers. Section 23 of the Act, is as follows:

"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, authorised 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 or 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:

Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years.

(3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed."


The Central Government vide notification dated 31.3.2010, has authorised the National Council for Teacher Education as the academic authority to lay down the minimum qualifications for a person to be eligible for appointment as a teacher. The State Government vide its notification dated 23.8.2010, in exercise of power under sub-section (1) of Section 23 of the Act, 2009 laid down minimum qualification for a person to be eligible for appointment as a teacher in Class 1 to VIII. Clauses 1 to 3 of the notification dated 23.8.2010 which are relevant in the present case are as follows:

"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 beconducted 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 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."

The above notification was further amended by National Council for Teacher Education vide notification dated 29.7.2011 which is to the following effect:
"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...."

As noted above, the qualifications, recruitment and criteria for selection of teachers in junior Basic School is regulated by the Rules 1981. It is relevant to note the relevant provisions of the Rules, 1981 as they were existing on the date when notification dated 23.8.2010 was issued. Rule 8 of the Rules, 1981 provided for qualifications of candidates. Rule 8 sub-rule (ii) which relates to Assistant Master/Mistress of junior Basic school is as follows:

Post     Academic Qualification
(ii) Assistant Master
and Assistant Mistress
of Junior Basic School
A Bachelor's Degree from a University established by law in India or a Degree recognized by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate, Vishist Basic Teachers certificate (B.T.C.) two years
BTC Urdu Special Training Course, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course recognized by the Government as 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.


Rule 14 of the Rules, 1981 provides for determination of vacancies and preparation of list. Rule 14 sub-rule (4) provided for criteria which was to be adopted while preparing the list. Rule 14 sub-rule (4) provided for arranging select list in accordance with the quality points specified in the Appendix. Rule 14 (4) as well as the appendix to the rules are to the following effect:

"14. Determination of vacancies and preparation of list.-
(1)    .....
(2)    .....
(3)    .....
(4)    The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that the candidates who have passed the required training course earlier in point of time shall be placed higher than those who have passed the said training course later and the candidates who have passed the training course in a particular year shall be arranged in accordance with the quality points specified in the Appendix."

APPENDIX
[See Rule 14(4)]
Quality points for selection of candidates.
Name     of Quality points
Examination/Degree
-----------------------------------------------------------------------------------------------   
1. High School     Percentage of marks
10
2. Intermediate Percentage of marks X 2
3. Graduation degree    Percentage of marks X 4
10

4. Training     First Division Second Division Third Division
(a) Theory     12     6     3
(b) Practical 12     6     3.

The education being subject matter of Entry 25 of List III by virtue of Article 254 of the Constitution, the law made by the Parliament shall prevail over any law made by the State. Thus, the notification issued under Section 23(1) of the Act, 2009 shall prevail over any law made by the State on the subject. The minimum qualification of teachers as provided in the Rules, 1981 thus has to give way to the minimum qualification as provided under the Act, 2009. Recognising the aforesaid, the State Government has made rules in exercise of power under Section 38 of the Act, 2009 namely: Uttar Pradesh Right of Children to free and Compulsory Education Rules, 2011. Rule 15 of the Rules, 2011 provides as follows:

"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."


The State amended its Rules, 1981 to make it in consonance with the notification issued under Section 23(1) dated 23.8.2010, by virtue of Uttar Pradesh Basic Education (Teachers) Service (Twelth Amendment) Rules, 2011 dated 09.11.2011. Existing Rule 8 which provides for academic qualification was amended with regard to Assistant Master/Assistant Mistress which is to the following effect:

2. In the said rules for rules 8 set out in Column-I below the rules as set out in Column II shall be substituted namely:
Column-I   
Existing Rule
Column-II
Rule as hereby substituted
Post
Academic Qualifications
Post
Academic Qualifications
(ii) Assistant Master and Assistant Mistress of Junior Basic School
A Bachelor's Degree from a University established by law in India or a Degree recognized by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate, Vishist Basic Teachers certificate (B.T.C.) two years BTC Urdu Special Training Course, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course recognized by the Government as 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.


One most important feature which was brought in the statutory scheme under the provisions of the Act, 2009 is Teacher Eligibility Test. The Teacher Eligibility Test has been envisaged as a test which is to be passed by every candidate who is to be considered for appointment as Assistant Master/Assistant Mistress in a primary school. The Teacher Eligibility Test was to be held by every State as per the guidelines issued by the National Council for Teacher Education. Teacher Eligibility Test for primary schools is akin to "National Eligibility Test" which has been now provided as qualification for appointment of teachers in graduate and Post Graduate colleges i.e. for higher education.

The Teacher Eligibility Test has been introduced to choose a candidate for appointment as teachers in primary school who conform to a uniform standard. The National Council for Teacher Education has issued a guidelines dated 11.2.2011, in respect of Teacher Eligibility Test. The guidelines dated 11.2.2011, issued by the National Council for Teacher Education apart from providing background and rationale, eligibility also laid down giving weightage to the marks of the Teacher Eligibility Test in appointment of Teachers. Paragraph 9 of the guidelines which has a heading of qualifying marks provides as follows:

"Qualifying marks
9. A person who scores 60% or more in the TET exam will be considered as TET pass. School managements (Government local bodies, government aided and unaided)
(a) may consider giving concessions to persons belonging to SC/ST, OBC, differently abled persons, etc, in accordance with their extant reservation policy;
(b) should give weightage to the TET scores in the recruitment process; however, qualifying the TET would not confer a right on any person for recruitment/employment as it is only one of the eligibility criteria for appointment."

The State following the notification dated 23.8.2010, and the aforesaid guidelines dated 11.2.2011, issued by the National Council for Teacher Education also amended the Rule 14 (4) which provides criteria for selection of Assistant Master/Assistant Mistress, the earlier criteria of selection was given a go-bye and sub-rule (3) of Rule 14 provided as follows:

"(3) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that their names shall be placed in descending order on the basis of the marks obtained in Teacher Eligibility Test conducted by the Government of Uttar Pradesh.

Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher."

Thus the State by 12th amendment rules provided for selection of Assistant Master/Assistant Mistress on the basis of marks obtained in the Teacher Eligibility Test conducted by the Government of U.P.
As noted above, the Teacher Eligibility Test in the State of U.P. was conducted on 13.11.2011, the result of which was declared on 25.11.2013. The advertisement dated 30.11.2011, was issued for 72825 posts of Assistant Master/Assistant Mistress in the Junior Basic School to be filled up in accordance with the criteria as brought into force by 12th amendment rule dated 09.11.2011 which was in accordance with the notification dated 23.8.2010 and the guidelines dated 11.2.2011 of National Council for Teacher Education. One more amendment in the rules which needs to be noted is the 15th Amendment Rules dated 31.8.2012. By 15th Amendment Rules, Rule 14 was amended and the criteria as provided for by Rule 14(3) by 12th amendment rules was withdrawn and the earlier criteria of selecting the teachers on the basis of the 'quality points' marks specified in "Appendix" was restored. Rule 14(3) as amended on 31.8.2012 was to the following effect:

"(3) The names of candidates in the list prepared under sub-rule (2) shall then be arranged in such manner that the candidate shall be arranged in accordance with the quality points specified in appendix. In the said rules the following appendix shall be inserted at the end.

Provided that if two or more candidates obtain equal marks, the candidate senior in age shall be placed higher."
Issue No.1.

After considering the relevant statutory schemes regarding the criteria to be adopted for selection of Assistant Master/Assistant Mistress in the Junior Basic School, now we proceed to consider the issues as noted above.

The first issue to be considered is as to whether the Rules, 1981 are applicable for selection of B.Ed candidates for imparting 6 months training and appointment.

Shri Ashok Khare learned Senior Counsel for the appellants had submitted that the Rules, 1981 have no application when the candidates having B.Ed qualifications are being selected for imparting 6 months training. He submits that the B.Ed candidates are selected for imparting 6 months training in accordance with the notification dated 23.8.2010 issued under sub-section (1) of Section 23 of the Act, 2009 and they are not being selected under the Rules, 1981 for imparting 6 months training, hence the Rules, 1981 have no application. He further submits that the Rules, 1981 having no application the 15th and 16th amendment rules need not to be looked into.

The learned Single Judge in his impugned judment has held that the advertisement dated 30.11.2011, notified appointments against the cadre posts covered by the the Rules, 1981 in Parishadiya Vidyalaya, hence the contention of the learned counsel for the appellants that the Rules, 1981 are not applicable cannot be accepted. The learned Single Judge rejected the above submission of the learned counsel for the appellant in the following words:

"From a reading of the first paragraph of the advertisement, it is apparently clear that the selections were to be made against the post of Assistant Teacher in Parishadiya Vidyalayas. From clause 9 of the advertisement, it is further apparent that after selection, the candidate would be appointed in a Parishadiya Vidyalaya of the District concerned. Out of the six months training prescribed, three months of training had to be undergone by actual working in the institution concerned. These three clauses of the advertisement make it abundantly clear that the advertisement dated 30.11.2011 intended appointments against the cadre posts covered by '1981 Rules' in Parishadiya Vidyalayas. Therefore the contention raised by the petitioners lead by Sri Ashok Khare, Sri P.N. Saxena, learned senior Advocates and Sri Shailendra Advocate to the effect the '1981 Rules' will not apply, cannot be accepted."

Continued......