UPTET : Allahabad Highcourt Judgement Case :- SPECIAL APPEAL No. - 2366 of 2011 PART 9

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 9

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"23. Qualifications for appointment and terms and conditions of service of teachers.-(1) ........................ 

(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 its 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." 

As noted above, possessing qualifications of teachers in paragraph 3 was permissible only up to 1.1.2012. The State Government have submitted a proposal to the Central Government by letter dated 26.7.2012 for relaxation of minimum qualifications for appointment of teachers under section (1) of Section 23 by allowing persons referred to in clause (1) (a) of paragraph 3 of the said notification. The Central Government after considering the request of the State Government issued a notification dated 10.9.2012 in exercise of power under section 23(2). It is useful to extract the aforesaid notification dated 10.9.2012 which is as follows: 

"MINISTRY OF HUMAN RESOURCE DEVELOPMENT 

(Department of School Education and Literacy) 

NOTIFICATION 

New Delhi, the 10th September, 2012 

S.O.2165(E).- WHEREAS the National Council for Teacher Education (hereinafter referred to as the Council) for Teacher Education (hereinafter referred to as the Council), in pursuance of sub-section (i) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009), (hereinafter referred to as the said Act), has, vide its notification number F.No.61/03/20/2010/NCTE/(N&S), dated the 23rd August, 2010, published in the Gazette of India, Extraordinary, Part III, Section 4, dated the 25th August, 2010, (hereinafter referred to as the said notification), as amended vide notification number 61-1/2011-NCTE(N&S), published in the Gazette of India Extraordinary, Part III, Section 4, dated the 2nd August, 2011, laid down the minimum qualification for a person to be eligible for appointment as a teacher for classes I to VIII in a school referred to in clause (n) of section 2 of the said Act. 

AND WHEREAS sub-clause (a) of clause (i) of paragraph 3 of the said notification as amended from time to time, provides that a person with graduation with atleast fifty per cent marks and Bachelor of Education (B.Ed.) qualification or with at least forty-five per cent marks and one year Bachelor in Education in accordance with the National Council for Teacher Education (NCTE) (Recognition Norms and Procedure) Regulations, referred to in the said Notification as amended from time to time, shall also be eligible for appointment to Class I to V up to 1st January, 2012 provided he/she undergoes, after appointment, a National Council for Teacher Education (NCTE) recognised six month Special Programme in Elementary Education. 

AND WHEREAS sub-section (2) of section 23 of the said Act provides that where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications laid down under sub-section (1) of Section 23 of the said Act 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; 

AND WHEREAS the State Government of Uttar Pradesh vide its letter dated the 26th of July, 2012 submitted a proposal to the Central Government for relaxation of the requirement of minimum qualifications for appointment of teachers laid down by the Council under sub-section (1) of section 23 of the said Act, by allowing persons referred to in sub-clause (a) of Clause (i) of paragraph 3 of the said notification, as amended from time to time, eligible for appointment as a teacher for classes I to V beyond the date of 1st January, 2012, subject to the fulfilment of conditions laid down in the said sub-clause. 

AND WHEREAS the Central Government on being satisfied with the proposal of the State Government of Uttar Pradesh that the teachers possessing minimum qualification as laid down under sub-section (i) of Section 23 of the said Act are not available in that State in sufficient numbers, and it deems necessary that the requirement of minimum qualifications for appointment as teachers in respect of State of Uttar Pradesh be relaxed under sub-section (2) of section 23 of the said Act; 

NOW, THEREFORE, in exercise of the powers conferred by sub-section (2) of section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009), the Central Government hereby relaxes in respect of the State of Uttar Pradesh, the minimum qualifications laid down by the National Council for Teacher Education under sub-section (1) of section 23 of the said Act in so far as they relate to classes I to V, and allows persons referred to in sub clause (a) of clause (1) of paragraph 3 of the said notification as amended from time to time, eligible for appointment as a teacher for classes I to V beyond the 1st January, 2012, subject to fulfilment of the conditions specified under the said sub clause. 

2. The relaxation granted under this notification shall be valid for a period upto the 31st March, 2014, subject to fulfilment of following conditions, namely:- 

(i)the State Government shall conduct the Teacher Eligibility Test as specified in the said notification as amended from time to time, in accordance with the Guidelines for conducting Teacher Eligibility Test, under the Right of Children to Free and Compulsory Education Act, 2009, issued by the Council vide its letter dated the 11th February, 2011 and those persons who pass the Teacher Eligibility Test be considered for appointment as a teacher in classes I to VIII; 

(ii)the State Government and other school managements shall amend the recruitment rules relating to appointment of teachers so as to provide for the minimum qualifications required for appointment of teachers laid down under the said notification as amended from time to time; 

(iii)the State Government shall in the matter of appointment of teacher give priority to those eligible candidates who possess the minimum qualifications specified in the said notification as amended from time to time and thereafter consider other candidates eligible with the qualifications referred to in sub-clause (a) of clause (i) of paragraph 3 thereof; 

(iv)advertisement for appointment of teachers shall be given wide publicity, including outside the State; 

(v) The State Government and other school managements shall ensure that teachers employed or engaged by them who possess the minimum qualifications referred to in sub clause (a) of clause (i) of paragraph 3 of the said notification as amended from time to time, under go, after appointment, a National Council for Teacher Education (NCTE) recognised six month Special Programme in Elementary Education; 

(vi)the relaxation specified in this notification shall be one time and no further relaxation under sub-section (2) of section 23 shall be granted to the State of Uttar Pradesh; and 

(vii)the State Government shall take steps to increase the institutional capacity for preparing persons with specified qualifications so s to ensure that only persons possessing qualifications laid down under the said notification are appointed as teachers for classes I to V after the 31st March, 2012. 

3. The persons referred to in sub-clause (a) of clause (i) of paragraph 3 of the said notification as amended from time to time, shall also be eligible for appearing in the Teacher Eligibility Test conducted by the State Government in respect of teacher appointments made in the State up to 31st March, 2014, in accordance with sub-paragraph (iii) of paragraph 5 of the Guidelines for conducting Teacher Eligibility Test under the Right of Children to Free and Compulsory Education Act, 2009 issued by the Council vide its letter dated the 11th February, 2011. 

[E No.1-17/2010-EE.4] 

VRINDA SARUP, Addl. Secy." 

The 4th paragraph of the aforesaid notifications clearly contemplates that State Government has submitted proposal for relaxation of the requirement of minimum qualifications for appointment of teachers laid down by the Council under sub-section (1) of section 23 of the said Act, by allowing persons referred to in sub-clause (a) of Clause (i) of paragraph 3 of the said notification, as amended from time to time, eligible for appointment as a teacher to teach classes I to V beyond the date of 1st January, 2012. The aforesaid notification thus, clearly contemplates relaxation for permitting the appointment of teachers referred to in paragraph 3 beyond 1.1.2012. The Central Government has granted the relaxation subject to conditions as mentioned in paragraph 2. The notification dated 10.9.2012 thus, also clearly re-enforces the view that the candidates possessing qualifications as referred to in paragraph 3 i.e. candidates having passed B.A. B.Sc. with 50% and B.Ed. are eligible for appointment as teacher for teaching class I to V beyond 1.1.2012 i.e. upto 31.3.2014. Thus, the eligibility of candidates in paragraph 3 has been continued by Central Government by allowing relaxation under sub-section (2) of Section 23. Thus, the submissions of the State that for appointment of teachers in basic schools a candidate should necessarily pass TET is misconceived. The relaxation having been granted by the Central Government under section 23(2) beyond the period 1.1.2012, still the candidates possessing qualifications as required in paragraph 3 of the notification dated 23.8.2010 can be appointed. 

The State having misconstrued the scope of clause 3 of notification dated 23.8.2010, by 12th Amendment Rules incorporated qualifications which require passing of TET by the candidates whereas the qualifications as mentioned in paragraph 3 have not been reflected in the Rules. When under 2009 Act and by virtue of notifications dated 23.8.2010 the relaxation granted by the Central Government vide notification dated 10.10.2012, the persons referred to in clause 3 of the notifications are still eligible for appointment, denying them right of consideration for appointment citing rule 8 of 1981 Rules as amended from time to time is misconceived and is contrary to the statutory schemes of 2009 Act. 1981 Rules cannot contain any rule contrary to qualifications as prescribed under section 23(1) and any such contrary prescription is unenforceable. We are thus of the view that persons having B.A. B.Sc. with 50% marks and B.Ed. are still eligible to be considered for appointment as teacher in class I to V in basic school. 

In the above context, it is relevant to refer to clause 2(iii) of the notifications dated 10.9.2012. The clarification which is quoted for ready reference is as follows: 

(viii)the State Government shall in the matter of appointment of teacher give priority in the said notification as amended from time to time and thereafter consider other candidates eligible with the qualifications referred to in sub-clause (a) of clause (i) of paragraph 3 thereof; 

The notification dated 10.9.2012 requires that State Government shall in the matter of appointment of teacher give priority to those eligible candidates who possess minimum qualifications specified in the said notification and thereafter consider every candidate eligible as per qualifications referred to under sub-clause (a) of clause (i) of paragraph 3. This requirement itself makes it clear that persons referred to in paragraph 3 are also eligible. However, a priority has to be given to person possessing minimum qualifications specified in the notification. The notification referred to is obviously notification dated 23.8.2010. Thus, priority has to be given to those candidates, who fulfil qualifications prescribed under paragraph 1 of the notification dated 23.8.2010 and there is no concept of priority amongst the candidates who possess qualifications under paragraph 3. 

Learned Counsel appearing for the State has also referred to a guidelines dated 8.11.2010 issued under section 35(1) issued by the Government of India. In paragraph 4 of the guidelines emphasis has been made i.e. "conditions of possessing TET will not be relaxed by the Central Government". The said guidelines have been issued for implementation of the provisions of section 23(2) which is clear from the subject of guidelines which as follows: 

"Subject: Guidelines under section 351 of the Right of Children to Free and Compulsory Education (RTE) Act, 2009 for implementation of the provisions of Section 23(2)-reg." 

Guidelines only mentions that conditions of possessing TET will not be relaxed by the Central Government thus, it require that the State Government should not submit any proposal for relaxation of TET which obviously referred to qualifications prescribed in paragraph 1 because it is only in paragraph 1 that requirement of passing TET is mentioned. The said guidelines cannot be read to mean that in paragraph 3 of the notification dated 23.8.2010 also requirement of passing TET is to be read in. Learned Additional Advocate General has submitted that the State has already initiated process for appointment of more than 72,000 trainee teachers and process has been initiated which according to corrigendum/amendment dated 31.12.2012 is to be completed by 31.3.2012. He submits that more than seven lacs applications have been received in response to the advertisement and the process is under way.

In view of the aforesaid discussions, we are of the view that the persons who are qualified under clause 3 of notification dated 23.8.2010 should also be eligible for consideration for appointment as assistant teacher in basic schools in the State of U.P. Whether the appointment is made as a trainee teacher or assistant teacher is of not much significance. The appointment on the post of teacher in whatever name or nomenclature it is referred to has to be made after considering all eligible persons as per notification dated 23.8.2010. We are of the view that State having not permitted applications from such candidates who are qualified under clause 3 without they having passed TET to participate in selection, it is required to issue corrigendum. Such candidate who possess qualifications prescribed in clause 3 under the notification dated 23.8.2010 be also permitted to participate in the selection. 

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 abovementioned 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. 

Parties shall bear their own costs. 

Date: 16.1.2013. 

LA/Rakesh 

Source : http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=2309727

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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: 

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UPTET : Allahabad Highcourt Judgement Case :- SPECIAL APPEAL No. - 2366 of 2011 PART 7

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 7

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Learned counsel for the appellant has also submitted that no advertisement was issued by the District Basic Education Officers for appointment and as and when the names of trained candidates were forwarded to the District Basic Education Officers by Principals of DIET, appointments were made. In this context much reliance has been placed on the supplementary counter affidavit of Mr. I.P. Sharma, Secretary, U.P. Board of Basic Education, Allahabad filed in Writ Petition No. 57595 of 2007 which has been brought on the record as Annexure-17 to the Special Appeal No.2366 of 2011. In the said supplementary counter affidavit following has been stated in paragraph 16:- 

"That so far as the compliance of Rule 14(4) of Rules, 1981 in the process of selection of Assistant Teachers is concerned, as stated above, the

trained eligible candidates is not available in any of the district in the State of U.P., 

therefore a policy decision was taken by the State Government by government order dated 22.8.2005 for appointment of Assistant Teachers in conformity with the list of successful candidates of Special BTC Training Program sponsored by the SCERT to the District Level Selection Committee as provided under the Rules, 1981. The said selection committee scrutinized the candidates for the post of Assistant teachers and after verification of the records, the recommendations were made by the selection committee and thereafter the appointment was made by the competent authority as per Rules, 1981." 

The said supplementary counter affidavit of Secretary,U.P. Board of Basic Education, Allahabad was dated 17th December, 2009 and can at best be treated to a statement of prevalent practice for issuing appointment to the Assistant Teachers. The said affidavit cannot be read to be an affidavit in context of Clause 5 of the notification dated 23rd August, 2010 nor it can be treated to be an admission on the part of the State that advertisement for selecting the candidates for Special BTC Course should be treated as initiation of process of appointment. 

Another limb of argument advanced by learned counsel for the appellants to support the claim of the appellants for appointment as Assistant Teachers without they having clearing TET is that even after 29th August, 2010 the State proceeded to make appointment of candidates who have obtained B.T.C. subsequent to 29th August, 2010. It is submitted that State issued those appointment letters since it correctly understood the legal position that by 

Clause 5 of the notification dated 23rd August, 2010 the minimum qualification as laid down by notification are not applicable for those candidates for whom process of recruitment has already begun. 

It is submitted that denying the appointment to the appellants and appointing similarly situated candidates is nothing but hostile discrimination by the State. Copies of the appointment letter of several candidates, who were appointed subsequent to 29th August, 2010, has been brought on the record in the supplementary affidavit filed in Special Appeal No.2347 of 2011 (Smt. Anjana Singh vs. State of U.P. and others). The appointment letter dated 9th August, 2011 of 131 candidates by District Basic Education Officer, Behraich and appointment letter dated 24th September, 2011 issued by District Basic Education Officer, Saharanpur of one candidate have been brought on the record. There cannot be any dispute to the appointments which have been made by the State of the candidates having Basic Teacher Certificate even after 29th August, 2010 but issuance of appointment letter even after 29th August, 2010 cannot be treated as establishment of fact that process of their appointment has begun prior to 29th August, 2010 and secondly when the case of appellants are not covered by Clause 5 of the notification dated 29th August, 2010 no direction can be issued to the State to give appointment to the candidates who claimed their appointment on the basis of Paragraph 5. The learned Single Judge in this context has rightly relied on the judgment of the Apex Court in the case of Yogesh Kumar and others vs. Government of NCT, Delhi and others reported in (2003)3 SCC 548. 

Thus the fact that certain candidates who have obtained their Basic Teachers Certificate after 29th August, 2010 have been given appointment, cannot be a ground to issue any mandamus to the State specially when notification dated 23rd August, 2010 issued under Section 23 of the 2009 Act creates a prohibition. Thus this Court cannot issue any mandamus to the State Government to violate statutory provisions. We are of the view that the appellants are not entitled for the benefit of Clause 5 of the notification dated 23rd August, 2010 and for them it cannot be held that process of appointment has begun before the date of notification dated 23rd August, 2010. 

Sri Ashok Khare, learned Senior Advocate, appearing for the appellants, in support of his submissions, has placed reliance on the judgment of the Apex Court in the case of N. Suresh Nathan vs. Union of India reported in 1992 Suppl.(1) SCC 584, Division Bench judgment of this Court dated 4th May, 2009 in Special Appeal No.377 of 2008 (Prem Chandra & others vs. State of U.P. and others), judgment of the Apex Court in the case of State of U.P. vs. Satish Kumar Mishra reported in 2010(9) SCC 52, judgment of the Apex Court in the case of State of Bihar and others vs. Mithlesh Kumar and judgment of the Himachal Pradesh High Court dated 21st August, 2012 in Writ Petition No.11746 of 2011 (Meena Kumari and others vs. State of Himachal Pradesh). 

In N. Suresh Nathan's case (supra) interpretation of recruitment rules for the post of Assistant Engineer in Public Works Department was under consideration. The dispute in the case was whether a diploma holder Junior Engineer who obtains a degree while in service becomes eligible for appointment as Assistant Engineer by promotion on completion of three years' service including therein the period of service prior to obtaining the degree or the three years' service as a degree holder for this purpose is to be reckoned from the date he obtains the degree. The Apex Court after considering the submission held that if the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. Following was laid down in paragraph 4 of the said judgement which is as under:- 

"4. In our opinion, this appeal has to be allowed. There is sufficient material including the admission of respondents Diploma-holders that the practice followed in the Department for a long time was that in the case of Diploma-holder Junior Engineers who obtained the Degree during service, the period of three years' service in the grade for eligibility for promotion as Degree-holders commenced from the date of obtaining the Degree and the earlier period of service as Diploma-holders was not counted for this purpose. This earlier practice was clearly admitted by the respondents Diploma-holders in para 5 of their application made to the Tribunal at page 115 of the paper book. This also appears to be the view of the Union Public Service Commission contained in their letter dated December 6,1968 extracted at pages 99-100 of the paper book in the counter affidavit of respondents 1 to 3. The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it. If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. It is in this perspective that the question raised has to be determined." 

In the aforesaid case the past practice in the department to treat diploma holders eligible for promotion after expiry of three years from the date they obtained the degree was one of the possible interpretation of the rules and since the said interpretation was backed by practice, the same was accepted. 

Against the Division Bench judgment of this Court in Prem Chandra's case (supra), the matter was taken in the Apex Court which is reported in 2010(9) SCC 52; State of U.P. and others vs. Santosh Kumar Mishra. It is sufficient to note the relevant observations of the Apex Court to find out the ratio of the aforesaid judgment. The issue, which was involved in the aforesaid case, has been noted in paragraphs 1 and 5, which are quoted below:- 

"1. The same criteria differently applied at two different points of time leading to different results and consequences, is the problem we are faced with in these Special Leave Petitions. The same principles which were applied in the case of the Respondents to deny them the benefit of appointment, were not given effect to when it came to their turn to get the benefit thereof. 

5.  According to the Respondents, on an interpretation of Rule 15(2) of the 1980 Rules by the State Government, they were entitled to be selected and appointed first on the vacancies advertised, as they belonged to previous batches and were denied appointment by the State Government earlier on the plea that notwithstanding their merit being superior to those of some of the diploma holders, who had obtained diploma prior in point of time, the latter candidates were to be given appointment first. As a result, those diploma holders, who had obtained diploma before the Respondents, were adjusted against the vacancies first, irrespective of their merit vis-`- vis the diploma holders of subsequent batches and the said practice was continued till 2002. However, when the fresh vacancies were declared and the Respondents were to be appointed on the same principle and practice, they were denied the benefit of the same citing the Rules of 1980 read with Rules of 2002, as amended by the Rules of 2003." 

The Division Bench of this Court took the view that when candidates were not permitted on the ground that candidates of earlier batches have to be promoted first irrespective of their merit, while considering those candidates for promotion the said practice cannot be departed with. The Apex Court laid down following in paragraph 41 of the said judgment:- 

"41.  It is on account of a deliberate decision taken by the State Government that the private Respondents were left out of the zone of consideration for appointment as Pharmacists in order to accommodate those who had obtained their diplomas earlier. The decision taken by the State Government at that time to accommodate the diploma- holders in batches against their respective years can no doubt be discontinued at a later stage, but not to the disadvantage of those who had been deprived of an opportunity of being appointed by virtue of the same Rules. In our view, the same decision which was taken to deprive the private Respondents from being appointed, could not now be discarded, once again to their disadvantage to prevent them from being appointed, introducing the concept of merit selection at a later stage. The same may be introduced after the private Respondents and those similarly-situated persons have been accommodated." 

The ratio of the above judgment of the Apex Court can be culled out from the above observation where it laid down that the decision of the State Government to accommodate diploma holders in batches against their respective years can no doubt be discontinued at a later stage, but not to the disadvantage of those who had been deprived of an opportunity of being appointed by virtue of the same Rules. The present is not a case where at any point of time the appellant, who have obtained B.T.C. after the date of notification dated 29th August, 2010 were considered and not appointed. Thus the judgment in the case of State of U.P. and others vs. Santosh Kumar Mishra was on its own facts and is clearly distinguishable. 

The judgment of the Apex Court in the case of State of Bihar vs. Mithlesh Kumar laid down that norms or rules as existing on date when process of selection begins will control such selection and any alteration to such norms would not affect the continuing process, unless specifically the same were given retrospective effect. There cannot be any dispute to the proposition laid down by the Apex Court in the aforesaid judgment. However, the question which is relevant in the present case is as to when process of selection begins. As noted above, the benefit of clause 5 of the notification dated 23rd August, 2010 could be available only when an advertisement has been issued initiating the selection process. In the case of State of Bihar vs. Mithlesh Kumar requisition was sent by the Government of Bihar to the Bihar Public Service Commission on 12th March, 1999 and the respondent was also interviewed but subsequently the policy was changed and the Commission did not sent any recommendation as the State Government requested the Commission not to recommend any further name. Following was observed by the Apex Court in paragraph 19 of the said judgment:- 

"19.  Both the learned Single Judge as also the Division Bench rightly held that the change in the norms of recruitment could be applied 14 prospectively and could not affect those who had been selected for being recommended for appointment after following the norms as were in place at the time when the selection process was commenced. The Respondent had been selected for recommendation to be appointed as Assistant Instructor in accordance with the existing norms. Before he could be appointed or even considered for appointment, the norms of recruitment were altered to the prejudice of the Respondent. The question is whether those altered norms will apply to the Respondent." 

The above case is thus clearly distinguishable since selection was complete and after completion of selection the process was changed. 

Learned counsel for the appellant has also relied on a judgment of the Himachal Pradesh High Court in Meena Kumari's case (supra). Learned Single Judge in the aforesaid case laid down following in paragraphs 6 and 7:- 

"6. Independently, it be also observed that respondents themselves have been adopting a policy of pick and choose, with regard to certain similarly situated persons, who approached this Court by way of CWP No.2994 of 2008, titled as Avinash Chander Sharma and others versus State of H.P. and others, wherein vide judgment dated 3.6.2011, the following observations were made: 

"Consequently, there will be a direction to respondent No.1 to take a decision with regard to filling-up of the backlog of posts of JBT in entire State of Himachal Pradesh, in accordance with the Reservation Policy and also procedure prescribed under the Rules. It is the grievance of the petitioner that no requisition is being sent by the Government to the ex-servicemen Cell for sponsoring the names mentioned in their roles. All posts to be filled-up by ex-servicemen or their dependants are to be identified and notified accordingly. It is clarified that till such time this procedure is not complied with, no posts of JBT shall be filled-up. The process of identification of the posts in question, if required, shall positively be completed within a period of four months from the receipt of copy of this judgment. Only thereafter, process for selection and appointment shall take place, which in any even must complete within a reasonable period, in accordance with statutory rules, guidelines and instructions." 

7. Significantly, while complying with such directions, respondents themselves have given appointment to the petitioners therein without insisting upon the condition of clearance of TET. Hence, this discriminatory approach cannot be allowed to be adopted by the Government in the case of the present petitioners. A uniform policy and approach has to be adopted qua all similarly situated persons. There cannot be any pick and choose. The actions of the State in the instant cases are thus arbitrary, whimsical and illegal." 

In the aforesaid case the State of Himachal Pradesh implemented the direction of the Court to take a decision with regard to filling up the post of JBT in accordance with the reservation policy and procedure prescribed in the rules. In complying with the direction the State adopted a discriminatory approach which was disapproved by the High Court. In the present case the submission of the counsel for the appellants is that when the candidate of first batch of B.T.C. 2004 were appointed subsequent to notification dated 29th August, 2010 without insisting them passing of TET, the same cannot be pressed into service against the appellants who are similarly situated. When prescribing of qualification for appointment of Assistant Teachers in basic schools is regulated by qualification prescribed by academic authority under Section 23 of the 2009 Act, the State is not a free agent to make appointment. The appointment of candidates, according to 2001 NCTE regulation could be made provided their cases are covered by Clause 5. We have already observed that cases of appellants are not covered by Clause 5 since it cannot be held that advertisement initiating process of appointment of teachers had began prior to the date of notification. Thus, as observed above, directing the State to make appointment of the candidates whose cases are not covered by Clause 5 shall be asking the State to act contrary to notification dated 23rd August, 2010 which is not permissible. 

Sri Shailendra, learned counsel appearing for the appellant in Special Appeal No.2391 of 2011, apart from adopting the submissions made by Sri Khare, has also contended that National Council of Teacher Education has no jurisdiction to prescribe qualification for appointment on the post of Assistant Teacher in basic schools. It is contended that under the 1993 Act, the NCTE can only prescribe qualification for teachers to impart teachers training. It is submitted that NCTE can have jurisdiction with regard to training qualifications in an institution and NCTE has no jurisdiction to prescribe qualification for basic schools. The submission of counsel for the appellants is fallacious since while laying down the qualification for appointment of teachers in basic schools vide notification dated 23rd August, 2010, the NCTE was not exercising any jurisdiction under the 1993 Act, rather the NCTE was laying down the qualifications under Section 23 of the 2009 Act as an academic authority as authorised by the Central Government. The Parliament has legislative competence to legislate on education as contained in Entry-25 of Last-III of VIIth Schedule of the Constitution of India. The education obviously includes primary education. The State by virtue of Article 21-A is obliged to provide free and compulsory education to children. Under the 2009 Act the NCTE has every competence to make provision laying down minimum qualification for appointment of teachers in primary schools. The NCTE is an academic authority authorised by the Central Government under the 2003 Act, hence there is no lack of jurisdiction in the NCTE to lay down minimum qualification for appointment of teachers in primary schools as per Section 23 of the 2009 Act and the submission of counsel for the appellant that NCTE has no jurisdiction to lay down the qualification for basic schools is fallacious. 

The submission of Sri Shailendra that notification dated 23rd August, 2010 is invalid since it has not been laid as required by Section 38(3) of the 2009 Act also cannot be accepted. Section 38(3) of the 2009 Act is applicable on rules framed by the appripriate Government exercising power under Section 38. The notification dated 23.8.2010 has been issued in exercise of power under Section 23 of the 2009 Act which can be exercised by the academic authority by notification. The notification dated 23.8.2010 has been published in the Gazette of India dated 25.8.2010 hence fully enforceable. 

Now comes the second issue, as noted above. The claim of the appellants who are BA/BSc with 50% and possesses B.Ed. qualification is that they are eligible for appointment as Assistant Teacher according to Clause 3 of the notification dated 23rd August, 2010 without requirement of having passed TET since the qualification of BA/BSc with at least 50% marks and B.Ed has been provided for appointment as Assistant Teacher to teach Classes I to V with rider that such appointees shall be imparted six months special programme in elementary education. It is 

submitted that qualifications under Clause 3 of the notification dated 23rd August, 2010 are independent qualifications and are not controlled by Clause 1 of the notification which requires passing of TET for appointment as Assistant Teacher to teach Classes I to V and Classes VI to VIII. For answering the question the scheme of the 2009 Act and the scheme as delineated by notification dated 23rd August, 2010 has to be looked into. 

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