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UPTET : Allahabad Highcourt Judgement Case :- SPECIAL APPEAL No. - 2366 of 2011 PART 5

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 5

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The Central Government authorised National Council For Teacher Education as an academic authority within the meaning of 2009 Act. National Council For Teacher Education as the academic authority laid down the minimum qualifications for a person to be eligible for appointment as a teacher for teaching classes I to VIII. The entire notification dated 23.8.2010 being relevant for the present case is quoted below:

"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)

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.

Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor of Elementary Education (B.El. Ed.)

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)

B.A/B.Sc. with at least 50% marks and 1 year Bachelor in Education (B.Ed.)

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.

Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor in Elementary Education (B.El. Ed)

Senior Secondary (or its equivalent) with at least 50% marks and 4 year BA/B.Sc. Ed or B.A.Ed./B.Sc. Ed.

B.A./B.Sc. with at least 50% marks and 1 year B.Ed. (Special Education)

AND

(b) Pass in the Teacher Eligibility Text (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose.

2. Diploma/Degree Course in Teacher Education:- For the purposes of this Notification, a diploma/degree course in teacher education recognized by the National Council for Teacher Education (NCTE) only shall be considered. However, in case of Diploma in Education (Special Education) and B.Ed (Special Education), a course recognized by the Rehabilitation Council of India (RCI) only shall be considered.

3. Training to be undergone :- A person-

(a) with B.A/B.Sc with at least 50% marks and B.Ed qualification shall also be eligible for appointment for class I to V 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.

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

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

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

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

The appellants before us are basically in two categories (i) those who have passed regular BTC training Course; and (ii) those who have passed special BTC Training Course of six months. All the appellants were admitted in respective training courses after being selected according to the procedure prescribed under different Government Orders issued from time to time and have passed BTC/Special BTC training course. The appellants after having passed the BTC/Special BTC, they are fully entitled for appointment as Assistant Teacher in a primary school as per U.P. Basic Education (Teachers) Service Rules, 1981 as well as National Council For Teacher Education (Determination of Minimum Qualification for Recruitment of Teachers in Schools ) Regulations, 2001. From the materials which have been brought on record, following are some of the important facts which emerged:

(a) The selection to regular BTC Course i.e. two years course is regulated by Government Orders issued from time to time. The candidates are selected and imparted two years training by DIETS of respective district.

(b) The candidates are selected for imparting Special BTC Training according to procedure as prescribed by different Government Orders for selecting them and after selection they are imparted Special BTC training of six months in DIETS and thereafter subjected to written examination and are granted certificate thereafter.

(c) The candidates who pass BTC Training Course or Special BTC training Course their names are forwarded to Director SCERT by Principal of DIETS who in turns forward the same to the Director Basic Education who according to the option of the candidates allocate them to different districts for appointment and thereafter appointing authority issues appointment letter to the candidates.

(d) The candidates who had passed BTC Training Course and special BTC training Course were appointed following the aforesaid procedure till 2011. The appellants although were admitted in special BTC Course 2004, Special BTC Courses- 2004,2007,2008 but due to different reasons could be declared passed after 23.8.2010.

(e) Although the Principal DIET sent the name of the candidates who passed the BTC/Special BTC to the respective district Basic Education Officer but the respective Basic Shiksha Adhikari did not issue appointment letter to the appellants and communicated them in writing that in view of the notification dated 23.8.2010 now passing the TET is necessary. Their claim can be considered only after they pass the TET.

Hon'ble Single Judge vide its judgment and order dated 11.11.2011 dismissed the writ petitions holding that the appointment of the petitioners as assistant teachers in elementary schools will have to be considered on the basis of the minimum qualifications prescribed in the notification dated 23.8.2010 and not by the National Council For Teacher Education Regulations 2001 and such being the position, the petitioners have necessarily to pass U.P.-TET before they are appointed as it is an essential requirement. Hon'ble Single Judge rejected the argument of the petitioners appellants that for them the process of appointment having already initiated prior to 23.8.2010 they should be appointed as per National Council For Teacher Education Regulations 2001. Hon'ble Single Judge held that the advertisement as contemplated in paragraph 5 of the notification dated 23.8.2010 is not referable to the advertisement issued for the admission in BTC/Special BTC Course and the advertisement is clearly referable to the advertisement to be issued under the 1981 Rules for making appointment of teachers. Hon'ble Single Judge further held that the

petitioners are not entitled for the benefit of paragraphs 5 of the notifications and any deviation made in the past shall also not confer any right upon the petitioners to claim that it should be continued by the State of U.P. The plea of discrimination in appointing certain similarly situated persons and denying to the petitioners have also not been accepted. Hon'ble Single Judge placed reliance on the two judgment of the apex Court Devendra Singh & Ors. Vs. State of U.P. & Ors.. (2007) 9 SCC 491 and Yogesh Kumar Vs. Government of NTC Delhi (2003) 3SCC 548.

UPTET : Allahabad Highcourt Judgement Case :- SPECIAL APPEAL No. - 2366 of 2011 PART 4

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

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

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PART 4

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Sri Shashi Nandan, learned Senior Counsel appearing for the candidates who have passed Special BTC training submits that those candidates who have passed special BTC training course are entitled for appointment since their selection for Special BTC training course was with object of filling number of posts which were already determined before initiating the process of selection. He submits that the very proposal submitted by the State Government to the National Council For Teacher Education for approval of Special BTC course was for filling up fixed number of posts and the selection of appellants for special BTC course was a step towards appointment and initiation of process for selection in the Special BTC training course is an step for appointment of teacher and the case is fully covered by exception created in paragraph 5 of the notification dated 23.8.2010. He submits that word 'process' has to be widely interpreted. Special BTC being a qualification now recognised by 1981 Rules as amended by 10th Amendment Rules those who have been selected for training are actually recruited for appointment as teacher. Reliance has also been placed on the letter of Director of Basic dated 31.10.2005 by which letter Director of Education Basic wrote to District Basic Shiksha Adhikari of the State of U.P. to give appointment to the candidates who have passed Special BTC course. He submits that paragraph 14 of the said letter clearly contemplated that since the candidates have been selected on the basis of the advertisement issued by SCERT no advertisement as contemplated in 1981 Rules is necessary.

The appointment letter dated 9.8.2011 has been referred to by which teachers have been appointed in primary institutions subsequent to notification dated 23.8.2010. Sri Asbhishek Srivastava learned counsel appearing in special appeal No. 2347 of 2011 further submits that the appellants who have been imparted special BTC training Course are B.A./BSc. and B.Ed and hence by virtue of clause 3 of the notification dated 23.8.2010 they are eligible for appointment as primary teachers. He submits that this aspects of the matter has not been adverted to by Hon'ble Single Judge and those appellants who are even B.Ed. with B.A. and B.Sc. have been treated to ineligible which is erroneous. Sri H.N. Shukla, learned counsel for the appellant have pleaded that similarly situated candidates having been appointed even after notification dated 23.8.2010, denying the said appointment to the appellants is arbitrary, discriminatory and violative of Article 14 of the Constitution of India. Sri Shailendra, learned counsel for the appellant submitted that National Council For Teacher Education has no jurisdiction to lay down the minimum qualifications for appointment of teachers in primary institutions. He submits that National Council For Teacher Education as per provisions of National Council For Teacher Education Act, 1993 has jurisdiction only to lay down qualification for teachers training institutions. He has referred to Section 2(e) and 12 of the National Council For Teacher Education Act, 1993 and judgment of the apex Court in (2008) 3 SCC 432 Basic Education Board Vs. Upendra Rai. He further submits that notification dated 23.8.2010 has not been laid as required under section 28 (3) of 2009 Act. The training of the appellants having been completed, they are entitled for appointment as assistant teachers and they have legitimate expectations also. It is submitted that no advertisement under rule 14 having not been issued for the last ten years, it is not open for the State to submit that process of recruitment shall not be treated to have been initiated as contemplated by clause 5 of the notification dated 23.8.2010.

Sri C.B. Yadav, learned Additional Advocate General submits that qualifications are required to be laid down under Section 23 of 2009 Act and power of relaxation in the qualification is vested only in the Central Government. He submits that process of appointment of teachers shall begin only when advertisement is issued under Rule 14 of 1981 Rules by the appointing authority and the appointing authority under Rule 2(b) being District Basic Shiksha Adhikari any advertisement by Director SCERT is not an advertisement within meaning of Rule 14. Reliance has also been placed on the judgment of Hon'ble Single Judge dated 14.10.2011 in writ petition No. 72433 of 2011 Govind Kumar Dixit & Others Vs. State Of U.P. & Others, (1994) 6 SCC 15 State of U.P. Vs. Raghubir Singh Yadav. Sri C.B. Yadav has also relied on the Rules framed by the State Government under section 38 of the 2009 Act.

We have considered the submissions of learned counsel for the parties and have perused the record.

Before we proceed to examine the respective submissions, it is useful to refer to certain statutory provisions which are relevant in the present case. The U.P. Basic Education (Teachers Service) Rules, 1981 have been framed for recruitment and conditions of service of teachers in junior basic schools and senior basic schools. Rule 8 of the Rules provide for qualification of Assistant teachers in junior basic school and senior basic school. After amendments made in Rule 2004 special basic teacher certificate is also included in qualification. Rule 8 as amended is as follows:

"8. 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 Qualification

(i) Mistress of Nursery school

Certificate of teaching (Nursery) from a recognized training institution in Uttar Pradesh or any other training qualification recognized by the Government as equivalent thereto

(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.

(2) The essential qualification of candidates for appointment to a post referred to in sub-clause (iii) and (iv) of clause (h) of Rule 5 for teaching Science, Mathematics, Craft or any language other than Hindi and Urdu shall be as follows:

(i)A Bachelor's Degree from a University established by law in India or a Degree recognized by the Government as equivalent thereto with Science, Mathematics, Craft or particular language, as the case may be, as one of the subjects, and

(ii)Training qualification consisting of a Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course recognized by the Government as equivalent thereto.

(3)The minimum experience of candidates for appointment to a post referred to in clause (b) of Rule 5 shall be as shown below against each:

(i) Head Mistress of Nursery School

At least five years' teaching experience as permanent Mistress of Nursery School

(ii) Headmaster or Head Mistress of Junior Basic School and Assistant Master or Assistant Mistress of Senior Basic School

At least five years' teaching experience as permanent Assistant Mistress or Assistant Master of Junior Basic School, Assistant Master or Assistant Mistress of Junior Basic School and Assistant Master or Assistant Mistress of Senior Basic School

(iii) Head Master or Head Mistress for Senior Basic School

At least three years' experience as permanent Head Master or Head Mistress of Junior Basic School or permanent Assistant Master or Assistant Mistress of Senior Basic School, as the case may be:

Provided that if sufficient number of suitable or eligible candidates are not available for promotion to the posts mentioned at serial numbers (ii) or (iii) the field of eligibility may be extended by the Board by giving relaxation in the period of experience.

(4) The essential qualifications of candidates for appointment to the posts referred to in clause (a) and sub-clauses (iii) and (iv) of clause (b) of Rule 5 for teaching Urdu language shall be as follows-

(i) A Bachelor's Degree from a University established by law in India or a Degree recognized by the Government as equivalent thereto with Urdu as one of the subjects.

Note: A candidate who does not possess the aforesaid qualification in Urdu, shall be eligible for appointment, if he possesses a Master's Degree in Urdu.

(ii)Basic Teacher's Certificate from any of the training centres in Lucknow, Agra, Mawana in district Meerut and Sakaldiha in district Chandauli established by the Government for imparting training for teaching Urdu or any other training qualification recognized by the Government as equivalent thereto.

(5) The essential qualifications of candidates having proficiency in Urdu for appointment to the posts referred to in sub-clause (ii) of clause (a) of rule 5 for teaching in urdu medium shall be as follows-

(i) A Bachelor's Degree from a University established by law in India or a Degree recognized by the Government as equivalent thereto. The qualifications for proficiency in Urdu will be such as may be prescribed from time to time by the Government.

(ii) Training qualification of two years B.T.C. Urdu special training course."

Rule 14 of the aforesaid Rules provides for determination of vacancies and preparation of list. Rule 14 is quoted as below:

"14. Determination of vacancies and preparation of list.- (1) In respect of appointment, by direct recruitment to the post of Mistress of Nursery Schools and Assistant Master or Assistant Mistress of Junior Basic Schools under clause (a) of Rule 5, the appointing authority shall determine the number of vacancies as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, dependants of freedom fighters and other categories under Rule 9 and notify the vacancies to the Employment Exchange and in at least two newspapers having adequate circulation in the State as well as in the concerned district inviting applications from candidates possessing prescribed training qualification from the district concerned.

(2) The appointing authority shall scrutinize the applications received in pursuance of the advertisement and the names of candidates received from the Employment Exchange and prepare a list of such persons as appear to possess the prescribed academic qualifications and be eligible for appointment."

National Council For Teacher Education Act, 1993 was enacted by Parliament with object to provide for the establishment of a National Council for Teacher Education with a view to achieving planned and co-ordinated 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. Regulations were framed by the National Council For Teacher Education namely National Council For Teacher Education (Determination of Minimum Qualification for Recruitment of Teachers in Schools ) Regulations, 2001 providing for minimum qualifications for recruitment of teachers. All institutions imparting training were required to obtain permission from National Council For Teacher Education for running any teachers' training course.

The Parliament enacted Right of Children to Free and Compulsory Education Act, 2009 to provide free and compulsory education to children of 6 to 14 years. Section 2(n) defines 'school'. Section 23 provided for qualifications for appointment and terms and conditions of service of teachers. Section 23 of the Act is quoted below:

"23. Qualifications for appointment and terms and conditions of service of teachers.- (1) Any person possessing such minimum qualifications, as laid down by an academic authority authorized by the Central Government by notification shall be eligible for appointment as a teacher.

(2)Where a State does not have adequate institutions offering courses for training in teacher education or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification.

Provided that a teacher who at the commencement of this Act, does not possess minimum qualification as laid down under sub-section (1), shall acquire such minimum qualification 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"

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

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

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PART 3

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There being more than 75,000 posts of Assistant Teachers vacant, the State Government sent a proposal to the National Council For Teacher Education for training of 50,000 more candidates of six months Special BTC Course. Proposal dated 26.6.2006 was sent to the State Government seeking approval of National Council For Teacher Education to give permission for imparting six months' training course to the B.Ed/L.T. candidates and other graduates having B.P.Ed/C.P.Ed/D.P.Ed. National Council For Teacher Education granted permission on 7.7.2007. The State Government issued a Government Order dated 10.7.2007 for imparting Special BTC Course to the candidates who have passed B.Ed. The Government Order also specifically contemplated that after completion of six months Special BTC Course, the candidates will be subjected to written examination and after passing the said examination they will be treated to be eligible to be appointed as Assistant Teachers. After the Government Order dated 10.7.2007, advertisements were issued by various DIETS inviting applications for selection in the Special BTC training Course. The appellants in Special Appeal No. 2347 of 2011, Smt. Anjana Singh also applied for Special BTC Course in pursuance of the Government Order dated 10.7.2007. Although she was selected for training but was not sent on account of stand taken by the authorities that B.Ed. Certificate obtained by the candidate on 21.5.1997 from Sampurnanand Sanskrit Vishwa Vidyalaya did not make her eligible since at that time National Council For Teacher Education had not granted recognition. The question as to whether B.Ed. certificate granted to Smt. Anjana Singh could be recognised as valid was subject matter of consideration by Full Bench of this Court in Bhupendra Kumar Tripathi Vs. State of U.P. and others (Special Appeal No. 858 of 2008) against which judgment State of U.P. filed Special leave to Appeal which was dismissed affirming the judgment of the Full Bench of this Court holding that during the period application of institution was pending for consideration before the National Council For Teacher Education, the certificate granted shall be valid. The judgment of the apex Court is reported in (2010) 13 SCC 203, State of U.P. Vs. Bhupendra Kumar Tripathi. The appellant Smt. Anjana Singh thus could be sent for Special BTC Course on 20.1.2011 and completed her training and was granted certificate on 27.9.2011.

Special BTC Training Course 2007 was imparted in two batches. The training of first batch was completed in April, 2011 and of the second batch in September, 2011. Those candidates who have passed in first batch in April 2011 were given appointment as Assistant Teacher by different Basic Shiksha Adhikari. However, with regard to Smt. Anjana Singh and others several similarly situated candidates, a letter was sent by the Basic Shiksha Adhikari Chitrakoot on 22.10,2011 addressed to all selected candidates of Special BTC Course 2007 that by notification dated 23.8.2010, minimum qualifications have been prescribed under Right of Children to Free and Compulsory Education Act, 2009 which require passing of Teachers Eligibility Test hence, the claim of appellant Smt. Anjana Singh and others similarly situated candidates could be considered only they pass TET.

Special BTC Course 2008 (Special Recruitment) was held for 10,084 posts for reserved category candidates and another BTC 2008 was held for 18,301 posts of General category candidates. In 2010 again by Government Order dated 14.5.2010 selection was initiated for imparting training and thereafter making appointment as Assistant Teacher. 5,000 posts of Assistant teachers were converted for B.T.C. Urdu graduates. A Government Order dated 5.9.2006 was issued for imparting training of Special B.T.C. Urdu for filling of the aforesaid 5,000 posts.

Right of Education having been recognised fundamental right by insertion of Article 21-A of the Constitution of India, the Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009 to provide free and compulsory education to all children of 6 to 14 years age. Section 23 of the Act provides for qualifications for appointment and terms and conditions of service of teachers. Central Government by notification authorised National Council For Teacher Education as the academic authority for laying down minimum qualifications. Notification dated 23.8.2010 published on 25.8.2010 was issued exercising power under section 23(1) of 2009 Act providing for minimum qualifications for appointment as teachers in class I to VIII. The notification dated 23.8.2010 was subsequently amended by notification dated 29.7.2011 (published on 2.8.2011). The claim of the appellants for appointment as Assistant Teacher in Primary School was considered and they were communicated by respective Basic Shiksha Adhikari that in view of the notification dated 23.8.2010 passing TET is a must and their claim can be considered only after they pass the TET. The writ petitions were filed by the candidates whose claim for appointment as assistant teacher were not considered, which writ petitions came for consideration before the Hon'ble Single Judge. Hon'ble Single Judge vide its judgment and order dated 11.11.2011 dismissed all the writ petitions leading writ petition being writ petition no. 59542 of 2011, Ravi Prakash Vs. State of U.P. and others holding that after issuance of the notification dated 23.8.2010 laying down minimum qualification for appointment of Assistant Teacher for class I to VIII, no teacher can be appointed unless he has passed TET and claim of appellants that they be considered for appointment as per qualifications prescribed by National Council For Teacher Education (Determination of Minimum Qualification for Recruitment of Teachers in Schools ) Regulations, 2001 since their cases were covered by paragraph 5 of the notification dated 23.8.2010 was not accepted. Against the judgment and order dated 11.11.2011, and some other similar judgements of learned single Judges all these appeals have been field, which have been heard together and are being decided by this common judgment.

We have heard Sri Ashok Khare, Sri Shashi Nandan, learned Senior Advocates, Shri Shailendra, Sri H.N. Shukla, Sri Abhisek Srivastava for the appellants. Sri C.B. Yadav, learned Additional Advocate General has appeared for the State. Sri Rizwan Akhtar and Sri Rajiv Joshi have appeared for National Council For Teacher Education.

Sri Ashok Khare, learned Senior Advocate, appearing for the appellants in leading Special Appeal No. 2366 of 2011 and in some other cases has submitted that appellants cannot be denied appointment as Assistant Teacher in basic schools on the ground that they do not possess the minimum qualifications as laid down by notification dated 23.8.2010 under 2009 Act since their cases are fully covered by paragraph 5 of the notification which is an exception to the minimum qualifications prescribed by the notification. Paragraph 5 of the notification provides that where an appropriate Government or local authority of a school has issued an advertisement to initiate the process of appointment of teachers prior to the date of notification such appointment may be made in accordance with National Council For Teacher Education (Determination of Minimum Qualification for Recruitment of Teachers in Schools ) Regulations, 2001. He submits that

when the appellants were selected for imparting BTC Course they were assured of appointment as assistant teacher

since there being shortage of assistant teachers all candidates who obtained basic teachers training course automatically become entitled for appointment as assistant teacher and in practise as and when a candidate passes basic teachers training course he was appointed as assistant teacher without subjecting to any selection process. Sri Khare submits that only selection process for appointment as assistant teacher is the selection process for selecting a candidate for BTC training Course. Neither any selection takes place after selecting a candidate for basic training course nor any candidates who has obtained BTC certificate is eliminated. The State for last more than a decade has never issued any advertisement as contemplated by Rule 14 of the U.P. Basic Education (Teachers) Service Rules, 1981 inviting applications or holding any selection process and has straight way appointed the candidates who passed the BTC Training Course. The name of those candidates who have passed the training course is forwarded by Principal of DIETS to the Basic Shiksha Adhikari/Director SCERT and thereafter Basic Shiksha Adhikari gives appointment to the candidates as assistant teacher. At the time of selection of a candidate for imparting BTC training the selection committee which is substantially the same as contemplated under the 1981 Rules select a candidate and thereafter no selection process having been adopted all the candidates have to be appointed. It is further submitted that even after issuance of the notification dated 23.8.2010 under section 23 of the 2009 Act, prescribing minimum qualification, the candidates who have passed BTC Training have been appointed without passing the TET. It is submitted that the State rightly understood that for those candidates who have passed BTC training Course, the process for appointment of teachers have already begun when they were selected for imparting training hence, their cases being covered by clause 5, there is no necessity for them to pass the TET hence, they were entitled for appointment and actually appointed. Learned Counsel for the appellant referred to several appointment orders issued by the Basic Shiksha Adhikari in different districts subsequent to notification dated 23.8.2010. Sri Khare further submits that action of the State in denying the appointment of appellants on the ground that they have not passed TET as per notification dated 23.8.2010 is discriminatory and arbitrary since similarly situated candidates have been given appointment even after 23.8.2010 without insisting having requirement of TET certificate. He submits that process of appointment includes BTC training and as and when the process of selection for imparting BTC training begins, the process of appointment has started. Even in December, 2011 appointment has been granted to candidates who have passed BTC course without insisting for passing TET. It is submitted that Government of Uttarakhand has rightly understood the scope of notification dated 23.8.2010 and has given appointment to the BTC trained candidates without insisting on passing of TET. Reference to the Government Order dated 14.6.2011 have been made, which has been brought on record of special appeal no. 2366 of 2011. He further submits that use of word 'an' in clause 5 of notification dated 23.8.2010 visualise more than one advertisements and the advertisements to select for imparting training is part of the entire process culminating into appointment. Hon'ble Single Judge committed error in holding that process of appointment had not begun since no advertisement under Rule 14 has been issued.

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

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

मेने पेटिशनर केस नंबर को थोडा संक्षिप्त कर दिया है क्योंकि बहुत सारे केस नंबर लिखे थे

और सिर्फ केस नंबर 2366/2011 का जिक्र किया है

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PART 2

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Apart from the candidates who have obtained regular BTC course there are large number of appellants before us who have obtained special BTC training Course. Special Appeal No. 2347 of 2011, Smt. Anjana Singh Vs. State of U.P. is one of such appeals. The back ground facts necessitating the State to take steps for imparting special BTC training needs also to be noted.

In State of U.P., basic education is regulated by U.P. Basic Education Act, 1972. The rules have been framed under the U.P. Basic Education Act namely; U.P. Basic Education (Teachers) Service Rules, 1981. The qualifications for appointment of Assistant Teachers in basic schools for class I to VIII are prescribed under the 1981 Rules. Rule 8 of the 1981 Rules provides for qualification for teachers of nursery schools, junior basic schools and head master of junior basic schools and senior basic schools. The qualifications for appointment of Assistant Teachers in basic schools required possessing of teachers training which initially included Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, Certificate of Teaching or any other training course recognized by the Government as equivalent thereto. Articles 39(f) and 45 Part IV of the Constitution of India enjoined on the state to provide for opportunity to Children to develop in healthy manner. Article 21A was inserted in Part III of the Constitution of India by 86th Amendment Act, 2002 directing that State shall provide free and compulsory education to all children of 6 to 14 years age. Central Government for fulfilling this Constitutional obligation have framed various schemes for providing education to children between 6 to 14 years and the State Governments were also involved and entrusted with several obligations in that regard. The scheme namely; 'Sarv Shiksha Abhiyan' was launched by the Central Government in the year 2000 in addition to certain earlier schemes launched by the Central Government. In the State of U.P. for imparting teachers training in every district District there are Institute of Education and Training which have capacity of 200 or 100 seats only. C.T. Training is imparted only at two places namely; Allahabad and Agra, total seats of which are only 61. Every year about 10,000-12,000 teachers of primary institutions retire. Under the various schemes launched by the Central Government and the State Government about 1,25,000/- posts of assistant teacher in primary institutions were created. There being acute shortage of trained teachers, to man the various primary institutions in the State, the State initiated special BTC Course from time to time. The first Special BTC Course was launched in the year 1998 for imparting Special BTC Course to the candidates so as to fill up 27,000 posts of Assistant Teachers. Special BTC Course-2001 was again initiated which could not be however, completed. The State issued a Government Order dated 14.1.2004 for imparting Special BTC Course to those candidates who were B.Ed./ L.T./ B.P.Ed/ C.P.Ed. to fill up 46179 posts of Assistant Teachers. The candidates were to be imparted six months Special BTC course after obtaining approval of National Council For Teacher Education. About 33,000 teachers could be appointed from the candidates who passed special BTC Course 2004. By Government Order dated 22.8.2005, the State took a policy decision for appointment of candidates who had passed Special BTC Course 2004. The State Government allocated posts to different districts for being filled up by the candidates who have obtained special BTC Training Course 2004. A procedure for appointment of Assistant Teachers was also laid down.

The Government Order contemplated that the candidates who passed special BTC training Course shall be appointed in their home district subject to number of vacancies available and if the numbers are more they shall be adjusted in their division or thereafter at other places.

The Principals DIETS were asked to obtain option from the candidates for three district and such option be forwarded to Director State Education Research and Training Institute and the Director of the State Education Research and Training shall forward it to Director Basic and the Director shall thereafter allocate the place of posting and ensure appointment and posting. The appellant Smt. Anjana Singh having been informed that her claim can be considered only after she passes TET, filed writ petition in this Court being writ petition No. 63322 of 2011 praying for following reliefs:

"I. issue a writ, order or direction in the nature of mandamus directing the respondent no. 2, 4 and 5 to appoint the petitioners on the post of Assistant Teacher as per the earlier norms of the N.C.T.E. granting exemption from N.C.T.E. notification dated 23.8.2010 and also

exempting the petitioners from the requirement of passing the U.P.T.E.T. Examination 2011."

Special Appeal No. 2359 of 2011, Kirti Singh Vs. State of U.P. has been filed by the candidates who have obtained two years Urdu BTC special Training 2006 (II). The State Government issued a Government Order dated 5.9.2006 providing for imparting special basic teachers course to the graduate candidates having qualification in Urdu. The Principal Diets issued advertisement inviting applications for admission in two years BTC Urdu Special Training Course 2006 in which the appellants were selected whose training could be completed in 2011. Five persons who had passed the two years Special BTC Urdu 2006 were appointed on 27.6.2011. However, the petitioners having not been given appointment had come up by filing writ petition No. 61638 of 2011 Kirti Singh and others Vs. State of U.P. and others, praying for a direction commanding the respondents not to insist upon the petitioners to pass the TET and grant appointment to the petitioners as Assistant Teachers in the schools run by the District Education Board.

Special Appeal No. 2316 of 2011, Santosh Kumar & Ors Vs. State of U.P. & Ors, has been filed by the appellants challenging the judgment and order of Hon'ble Single Judge dated 14.11.2011 in writ petition No. 64709 of 2011 Shailendra Kumar Yadav Vs. State of U.P. and others. The writ petition was filed by the candidates who have completed Special Basic Teachers certificate course 2007 and 2008 on 27.9.2011 praying for a direction upon the respondents to forthwith grant appointment as assistant teachers without requiring the petitioners to pass the TET. Writ petition was dismissed by Hon'ble Single Judge.

Special Appeal No. 2367 of 2011 has been filed against the judgment and order dated 15.11.2011 passed in writ petition No. 60817 of 2011, Ajit Kumar Singh Vs. State of U.P. and others by which order Hon'ble Single Judge following the judgment of Hon'ble Single Judge in Ravi Prakash Vs. State of U.P. and others has dismissed the writ petition. The writ petition was filed by the candidates who have passed regular BTC Course 2004.

Special Appeal No. 2420 of 2011 has been filed against the judgment and order of Hon'ble Single Judge dated 28.11.2011 passed in writ petition No. 68086 of 2011 dismissing the writ petition. The petitioners had passed the regular two years BTC Course-2004 and had come up in writ petition praying for direction to to the respondents to give appointment to the petitioners as assistant teachers in basic school. Hon'ble Single Judge following the judgment in the case of Ravi Prakash Vs. State of U.P. and others, dismissed the writ petition.

Special Appeal No. 506 of 2011 has been filed against the judgment and order of Hon'ble Single Judge dated 14.2.2012 dismissing the writ petition No. 8371 of 2012. The petitioner had passed regular BTC Course 2004 and had prayed for mandamus directing the respondents to grant appointment to him as Assistant Teacher in primary school run by Basic Education Board. Hon'ble Single Judge following the judgement in the case of Ravi Prakash Vs. State of U.P. dismissed the writ petition.

Special Appeal No. 2513 of 2011 has been filed against the judgment of Hon'ble Single Judge dated 13.12.2011 dismissing the writ petition No. 71798 of 2011 Bhuwaneshwar Singh Vs. State of U.P. and others. The writ petition was filed by the candidates who were granted special BTC Course 2008 certificate on 27.9.2011 and were not given appointment. Hon'ble Single Judge held that since the process of recruitment under 1981 Rules have not been undergone, no direction can be issued to appoint the petitioners as assistant teacher.

Special Appeal No. 2500 of 2011 has been filed against the judgment and order of Hon'ble Single Judge dated 24.11.2011 passed in writ petition no. 65464 of 2011 by which order Hon'ble Single Judge following the judgment in the case of Ravi Prakash (supra), has dismissed the writ petition. The petitioners had applied for two years BTC 2004 and were declared passed in September, 2011.

Special Appeal No. 2501 of 2011 has been filed against the judgment and order of Hon'ble Single Judge dated 12.12.2011 passed in writ petition no. 71409 of 2011 by which order, the writ petition was dismissed holding that process of recruitment under 1981 Rules having not been undergone and the petitioners case not being that they have been selected for appointment in accordance with 1981 Rules, no mandamus can be issued. The petitioners were the candidates who were declared passed in regular BTC Course in September, 2011.

Special Appeal No. 2448 of 2011 has been filed against the judgment and order passed by Hon'ble Single Judge in writ petition No. 61064 of 2011 dismissing the writ petition on 15.11.2011. Hon'ble Single Judge dismissed the writ petition following the judgment in Ravi Prakash Vs. State of U.P. and others. The petitioners were the candidates who were declared passed in regular BTC Course 2004.

Special Appeal No. 143 of 2012 has been filed against the judgment and order of Hon'ble Single Judge passed in writ petition no. 72606 of 2011 which writ petition was dismissed on 15.12.2011. The petitioners had passed special BTC 2008 and were claiming direction to the respondents to appoint them as assistant teachers in primary schools.

Special appeal No. 1176 of 2011 has been filed against the judgment and order dated 22.11.2011 dismissing the writ petition no. 66943 of 2011. The petitioners were the candidates who had passed special BTC 2007. Hon'ble Single Judge following the judgment in Ravi Prakash Vs. State of U.P. and others has dismissed the writ petition.

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

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

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PART 1

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. - 37

Case :- SPECIAL APPEAL No. - 2366 of 2011

Petitioner :- Prabhakar Singh And Others

Respondent :- State Of U.P. And Others

Petitioner Counsel :- Siddharth Khare,Ashok Khare

Respondent Counsel :- C.S.C.,R.A. Akhtar,Rajiv Joshi

With

_______

Hon'ble Ashok Bhushan, J.

Hon'ble Abhinava Upadhya, J.

(Per Hon'ble Ashok Bhushan, J.)

These appeals raising common question of law have been heard together and are being decided by this common judgment. Special appeals under Chapter VIII Rule 5 of the Rules of the Court have been filed against the judgment and order of learned Single Judges dismissing the writ petitions filed by the appellants. In majority of the writ petitions, the challenge is to the judgement and order of Hon'ble Single Judge dated 11.11.2011, passed in writ petition No. 59542 of 2011, Ravi Prakash and others Vs. State of U.P. and others. Following the aforesaid judgment in Ravi Prakash's case majority of the appeals have been dismissed. All the special appeals can be divided in three broad categories. One group of special appeals have been filed by the candidates, who have passed regular two years Basic Training Course from the different District Institute of Education and Training in the State of U.P. The second category of special appeals have been field by those candidates, who have passed special BTC Course of six months conducted with the approval of National Council For Teacher Education to train the candidates so that they may become eligible for appointment on the post of Assistant Teacher in primary schools run by U.P. Basic Education Board. The third category of appeal relates to the candidates who have passed two years BTC Urdu special training course. Special appeal no. 2359 of 2011, Kirti Singh and others Vs. State of U.P. and others belongs to this third category. Facts in detail of the aforesaid three categories of appeals have to be noted for deciding the issues raised in these appeals. Apart from the above, there are certain appeals which have been filed against the judgment and order of other Hon'ble Single Judges apart from the Hon'ble Single Judge who decided the case of Ravi Prakash Vs. State of U.P. and others. Facts in detail of the aforesaid appeals are also to be noted.

Special Appeal No. 2366 of 2011, Prabhakar Singh and others Vs. State of U.P. and others filed by the candidates who have passed regular two years BTC 2004 is being treated as leading special appeal. Now facts giving rise to Special Appeal No. 2366 of 2011 be noted in brief.

State of U.P. issued a Government order dated 20.2.2004 for imparting teachers training to the candidates by District Education and Training Institutes (hereinafter referred to as 'DIET'). The procedure for selecting the candidates was modified by the Government Order dated 20.3.2004. Notifications were issued in September, 2004 inviting applications for selection for imparting Two Years Regular BTC training. Selection could be notified only in January, 2009 and first batch of candidates were admitted in January, 2009. The appellants were also admitted for imparting training in second batch in June, 2009. The Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009, which was published in Gazette of India on 27.8.2009. By a notification dated 31.3.2010, issued under Section 23(1) of 2009 Act, National Council For Teacher Education was notified as academic authority. National Council For Teacher Education vide its notification dated 23.8.2010 laid down the minimum qualifications for a person to be eligible to be appointed as an assistant teacher for teaching class 1 to class 8 in a school. By subsequent notification dated 29.7.2011, amendments were made in earlier notifications dated 23.8.2010. The appellants were granted BTC certificate on 21.9.2011. The appellants made a request to the District Basic Education Officer for being given appointment as Assistant Teacher in primary institutions. Basic Shiksha Adhikari sent a communication dated 15.10.2011 informing them that in view of the notifications dated 23.8.2010 issued by the National Council For Teacher Education, the minimum qualifications required passing of Teachers Eligibility Test (TET) hence, the appointment can be given only after the said test is cleared. The said communication was sent to Basic Shiksha Adhikari to all candidates who have passed BTC Course 2004. The appellants had come up in the writ petition praying for the following reliefs:

"1. a writ, order or direction in the nature of certiorari quashing the order dated 15.10.2010 issued by the Basic Shiksha Adhikari, Chitrakoot (Annexure No. 4 to this writ petition).

2. a writ, order or direction of suitable nature commanding the respondents to forthwith grant appointment to the petitioners as assistant teacher in Prathmik Vidyalaya run by Board of Basic Education, U.P., Allahabad for district Chitrakoot within a period to be specified by this Hon'ble Court.

3. a writ, order or direction of suitable nature commanding the respondents to permit the petitioners to function as assistant teacher in Prathmik Vidyalaya run by Board of Basic Education, U.P., in district Chitrakoot and to pay the petitioners their regular monthly salary on such basis regularly every month.

4. a writ, order or direction of suitable nature commanding the respondents not to insist upon the petitioners to pass the U.P. Teacher Eligibility Test as a pre condition for grant of appointment to the petitioners as assistant teachers."

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News Source : http://paper.hindustantimes.com/epaper (18.1.13)
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UPTET : शिक्षक भर्ती में विशेष अपील की तैयारी

लखनऊ(ब्यूरो)। शिक्षक भर्ती प्रक्रिया में ओवरएज वालों को शामिल करने संबंधी हाईकोर्ट के आदेश के खिलाफ विशेष अपील करने पर विचार किया जा रहा है। पर इस पर अंतिम निर्णय बेसिक शिक्षा मंत्री रामगोविंद चौधरी करेंगे। बेसिक शिक्षा विभाग का मानना है कि बेसिक शिक्षा अध्यापक सेवा नियमावली में शिक्षक रखने की अधिकतम आयु सीमा 40 वर्ष है। वर्ष 2011 में 72 हजार 825 शिक्षकों की भर्ती के लिए मांगे गए आवेदन का रद कर दिया गया है। इस स्थिति ऐसे आवेदकों का दावा नहीं बरता है

News Source : Amar Ujala (18.1.13)