Final Decision of Allahabad Highcourt for recruitment of 72825 Teachers in Basic Education Dept.
PART -6
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Shri Ashok Khare, learned Senior Counsel has relied on Clause 3 of the notification dated 23.8.2010. Clause 3 of the notification dated 23.8.2010 provides as follows:
"3. Training to be undergone. A person
(a) with BA/B.S.c with at least 50% marks and B.Ed qualification shall also be eligible for appointment for class 1 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."
It is to be noted that the B.Ed qualification is not a qualification provided for in para 1 of the notification dated 23.8.2010 nor the B.Ed qualification was recognised as a qualification under the Rules, 1981 for appointment of Assistant Master/Assistant Mistress in the Junior Basic Schools. There being shortage of teachers in primary schools throughout the country, the National Council for Teacher Education vide its notification dated 23.8.2010 provided in Clause 3 that those candidates who have passed B.Ed with B.A/B.Sc. with at least 50% marks shall also be eligible for appointment for Class 1 to V upto 1st January, 2012, thus, the appointment of B.Ed passed candidates was envisaged for a limited period.
Shri C.B. Yadav, learned Additional Advocate General appearing for the State has pointed out that the date 01.1.2012 has been relaxed by the order of the Central Government under Section 23 (2) up to 31.3.2014. Clause 3 of the notification dated 23.8.2010 uses two words "for appointment" and "after appointment". The statutory scheme provides that a person with B.A/B.S.C. with at least 50% marks and B.Ed shall also be eligible "for appointment" provided he undergoes "after appointment" an NCTE recognized 6-month special programme in Elementary Education. The statutory scheme contemplates appointment of a person for teaching upto Classes 1 to V and contemplates sending the candidates for training "after appointment". Thus, the statutory scheme indicates that appointment has to be first made of the person having B.Ed and thereafter he will be sent for training. The advertisement dated 30.11.2011, has to be read in the light of the statutory scheme delineated by clause 3. The statutory provision under 2009 Act has to prevail over any advertisement or any administrative decision of the State of U.P. The candidates who are graduate with required percentage and who have passed B.Ed have been treated to be eligible for appointment and the six months training is not a pre-condition for their appointment. It may be another thing that a teacher who has been appointed does not successfully completes the training and may loose his appointment on account of not having successfully completed six months training, but the scheme does not provide for six months training as a pre-condition for appointment or a person has to be first selected for six months training and thereafter appointed as Assistant Master/Assistant Mistress. In this context reference is to be made to the judgment of the Apex Court in Devendra Singh & Ors. Vs. State of U.P. & Ors, JT 2007 (7) SC 13, in which the Apex Court was considering the Rules, 1981 in context of Special BTC Training Course as envisaged by the Government Order dated 14.1.2004. The Apex Court in the said context had observed that the U.P. Basic Education (Teachers) Service Rules, 1981 deal with the post training scenario, hence the Rules, 1981 were not applicable for selection of the candidates for imparting special Basic Training Course-2004. In the said case, the petitioners were not selected for imparting Special Basic Training Course 2004, they claimed that they should be given preference in the Special Basic Training Course 2004. The case of Devendra Singh (supra) is distinguishable since unless the candidate does not obtain a Special BTC Training Course 2004, they do not get eligibility to be appointed as Assistant Master/Assistant Mistress under the Rules, 1981.Special Basic Training Course 2004 was to be given, to make a candidate eligible for consideration of appointment. The present case is distinguishable from the aforesaid scheme of the Government Order dated 14.1.2004 since by virtue of clause 3 of the notification dated 23.8.2010, the B.Ed candidates with requisite percentage in graduation are treated to be eligible for appointment and they are to be imparted six months special training "after appointment". Thus, the submission made by Shri Ashok Khare appearing for the appellants that the Rules, 1981 are not applicable for making the selection of B.Ed candidates as per the advertisement dated 30.11.2011, cannot be accepted. The Rules, 1981 read with the notification dated 23.8.2010 issued under Section 23 (1) and the guidelines dated 11.2.2011 issued by the National Council for Teacher Education are fully applicable for appointment of Assistant Master/Assistant Mistress in pursuance of the advertisement dated 30.11.2011, hence the submission made by Shri Ashok Khare,learned counsel for the appellants that the Rules, 1981 are not applicable cannot be accepted.
Issue No. 2:
Now we take issue No. 2. Learned Single Judge in the impugned judgment has denied relief to the petitioner-appellants only on the ground that the advertisement dated 30.11.2011 contemplated appointment as "trainee teacher", which cadre being not under the 1981 Rules, the advertisement itself was invalid.
1981 Rules have been framed by the State providing for cadre strength, recruitment and other conditions. Rule 4(1) and (2) provides as follows:
"4. Strength of the Service.-(1) There shall be separate cadres of service under these rules for each local area.
(2) The strength of the cadre of the teaching staff pertaining to a local area and the number of the posts in the cadre shall be such as may be determined by the Board from time to time with the previous approval of the State Government:
Provided that the appointing authority may leave unfilled or the Board may hold in abeyance and post or class of posts without thereby entitling any person to compensation:
Provided further that the Board may, with the previous approval of the State Government, create from time to time such number of temporary posts as it may deem fit."
Rule 5 relates to source of recruitment. Various categories of posts have been mentioned under Rule 5. Post of Assistant Master/Assistant Mistress of junior basic school has been mentioned at serial No. (a) (ii) which is a recognised cadre for appointment of teachers. The advertisement dated 30.11.2011 has to be looked into to find out as to on which posts the applications for selection were invited. Learned Single Judge has quoted the entire advertisement in the impugned judgment. The advertisement contemplates selection of 'Trainee-teacher'. The qualifications mentioned in clause 1 of the advertisement are qualifications prescribed for appointment of Assistant Master/Assistant Mistress under Rule 8. Clause 8(Chha) contemplates appointment of selected candidates in the primary institutions as per 2008 Postings Rules. Clause 10 further contemplates substantive appointment in accordance with the 1981 Rules as amended by 12th Amendment Rules. The note given at the end of the advertisement is also relevant which is to the following effect:
"uksV& mijksDr foKkiu ds dze esa ftu vH;fFkZ;ksa dh ftl tuin gsrq p;uksijkar fu;qfDr dh tk,xh mudk vUrtZuinh; LFkkukUrj.k tuinh; laoxZ gksus ds dkj.k vuqeU; ugha gksxkA"
The advertisement thus, clearly indicates that appointment has to be made on a cadre post in primary schools. Along with the advertisement details/allotment of vacancies for appointment have also been mentioned. Allotment of various vacancies to different 75 districts have been mentioned in the table. Total 72,825 posts have been included in the vacancies. Obviously, the vacancies which are referred to in the table are existing vacancies of Assistant Master/Assistant Mistress in each of the district in the State of U.P.
In this context, reference to the notification dated 23.8.2010 is also necessary since the advertisement for appointment was issued for B.Ed. qualified candidates as per clause 3 of the notification dated 23.8.2010. As noted above, the notification dated 23.8.2010 makes eligible the candidates having B.Ed. with specified percentage of marks in the graduation for appointment till 1.1.2012 ( which date has now been extended as 31.3.2014). The notification dated 23.8.2010 further contemplates sending of the candidates for six months special training after appointment. Thus, the appointment of Assistant Master/Assistant Mistress has to be made first and thereafter they will be send for training. The advertisement contemplates appointment on the existing 72,825 vacancies of Assistant Master/Assistant Mistress and in the advertisement those teachers were mentioned as trainee teachers since they were contemplated to be sent for training. As noted above, sending the said candidates for training did not in any manner affect their nature of appointment.
Six months training was not a pre-condition for appointment under clause 3. The notification dated 23.8.2010, which has an overriding effect over any action of the State under the 1981 Rules or advertisement, has to be given effect to. When the notification dated 23.8.2010, under which Assistant Master/Assistant Mistress were to be appointed does not contemplate any appointment of trainee teacher, mere use of phrase for such selection as 'trainee-teacher' shall not detract from the real nature of the appointment. There was no necessity or requirement of creating any separate cadre of "trainee teacher" for appointment under clause 3 in the notification dated 23.8.2010. The substance of the advertisement has to be looked into and not mere form. The description in the advertisement of such teacher as trainee teacher was inconsequential which had no effect on the cadre on which they were to be appointed. We thus, are of the view that the advertisement invited applications for appointment on the existing cadre of Assistant Master/Assistant Mistress in primary schools of U.P. Basic Education Board with regard to which 72,825 vacancies were already determined and allotted to different districts as is apparent from the table attached to the advertisement.
It is relevant to note that the learned Single Judge in the impugned judgment has also noted that advertisement covers the post of teachers governed by the 1981 Rules. It is useful to quote the following observations of learned Single Judge:
"It is not in dispute that the State Government did not create any post of Apprentice Teachers by any other notification. The appointments under the advertisement dated 30.11.2011 were to be made against the cadre posts covered by ''1981 Rules' is well supported from the first line of the advertisement, which is being reproduced again here under:-
"mRrj izns'k csfld f'k{kk ifj"kn ds v/khu lapkfyr izkFkfed fo+|ky;ks esa izf'k{kq f'k{kdksa ds p;u gsrqA"
The clause 9 of the advertisement dated 30.11.2011 specifies that selected candidate shall be appointed in an Parishadiya institution of the District concerned and he shall then undergo training of three months at District Institution of Education and Training of the district concerned (DIET) and three months training at the institution.
The stipulation in clause 10 of the advertisement dated 30.11.2011 is that the selected candidate on successful completion of the training would become entitled to be considered for appointment on the substantive post as a teacher in accordance with the ''1981 Rules' is in itself sufficient to establish that the advertisement was with regard to the posts covered under the ''1981 Rules'."
Again in the latter part of the judgment, learned Single Judge has further held that the advertisement makes it clear that selections were to be made against the post of Assistant Teachers in Parishadiya Vidyalaya. Following observations were made:
"From a reading of the first paragraph of the advertisement, it is apparently clear that the selections were to be made against the post of Assistant Teacher in Parishadiya Vidyalayas. From clause 9 of the advertisement, it is further apparent that after selection, the candidate would be appointed in a Parishadiya Vidyalaya of the District concerned. Out of the six months training prescribed, three months of training had to be undergone by actual working in the institution concerned. These three clauses of the advertisement make it abundantly clear that the advertisement dated 30.11.2011 intended appointments against the cadre posts covered by '1981 Rules' in Parishadiya Vidyalayas. Therefore the contention raised by the petitioners lead by Sri Ashok Khare, Sri P.N. Saxena, learned senior Advocates and Sri Shailendra Advocate to the effect the '1981 Rules' will not apply, cannot be accepted."
From the above observations of the learned Single Judge, it is clear that the learned Single Judge has noted the advertisement which provided appointment to the cadre post covered by the 1981 Rules ie. the post of Assistant Teachers (Assistant Master/Assistant Mistress). When the learned Single Judge found that the advertisement intended to make appointment in the existing cadre of 1981 Rules, there was no reason to hold the advertisement bad only on the ground that appointments were to made on a post of trainee teacher which cadre was non-existent in Rule, 1981. Learned Single Judge recorded findings in following manner:
"It is held that the advertisement as published by the State Government on 30.11.2011 necessarily referred to the cadre post covered by the '1981 Rules'. There being no stipulation of appointment of Trainee Teacher under the said '1981 Rules, the advertisement itself was bad."
We are thus, of the view that the reason on which the learned Single Judge held the advertisement dated 30.11.2011 bad, was fallacious. The advertisement dated 30.11.2011 clearly intended to make appointment on 72825 vacant posts of existing cadre under the 1981 Rules i.e. Assistant Master/Assistant Mistress which vacancies have already been determined and allotted. Holding the advertisement bad on the ground that appointments were for the post of trainee-teacher which was not a cadre in 1981 Rules, cannot be sustained. Mere description of person to be appointed as trainee teacher cannot detract the nature of their appointment and the posts on which they were to be appointed under the advertisement. The said teachers were described as trainee teacher due to the reason that those teachers after appointment were to be sent for six months' training as was contemplated by clause 3 of the notification dated 23.8.2010. We are thus, of the view that the reasons given by the learned Single Judge for holding the advertisement bad is unsustainable and cannot be upheld. In this context, it is also relevant to refer to 16th Amendment rules dated 4.12.2012 by which the posts of trainee teacher has been provided for under the 1981 Rules. We may observe that creating of cadre of trainee teacher by 16th Amendment Rules is a redundant exercise. As observed above, the notification dated 23.8.2010 contemplated appointment of persons having B.Ed. qualifications till 1.1.2012 and thereafter they were to be imparted six months special training. The notification dated 23.8.2010 did not contemplated the appointment of trainee teacher since the training is to be imparted to such teachers after appointment which has been clearly mentioned in clause 3 of the notification as quoted above. As observed above, the rules framed by the State or any of its action for making appointment of the Assistant Teachers has to be in consonance with the notification dated 23.8.2010, which shall have overriding effect on any rule or any action of the State. The notification dated 23.8.2010 shall override any contrary rule or scheme of the State.
Issue No. 3:
Now comes the issue No. 3 as to whether the guidelines dated 11.2.2011 issued by the National Council For Teacher Education are binding on the State. The National Council For Teacher Education has been constituted under the 1993 Act for planned and co-ordinated development of the teacher education system throughout the country and for the regulation and for proper maintenance of norms and standards in teachers education system. Section 12 of the National Council For Teacher Education Act enumerates the function of the Council. Section 12(d) specifically empowers Council to lay down guidelines in respect of minimum of qualifications for a person to be employed as a teacher. Section 12(d) is as follows:
"FUNCTIONS OF THE COUNCIL
It shall be the duty of the Council to take all such steps as it may think fit for ensuring planned and co-ordinated development of teacher education and for the determination and maintenance of standards for teacher education and for the purposes of performing its functions under this Act, the Council may -
(a) ................
(b) ..............
(c) .................
(d)lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognised institutions;"
Section 32 empowers the National Council For Teacher Education to make regulations. Section 32(2) (d) (i), which is relevant is quoted as below:
"32. POWER TO MAKE REGULATIONS
(1).........
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely :-
(a) ...........
(b) ........
(c) .........
(d) the norms, guidelines and standards in respect of -
(i) the minimum qualifications for a person to be employed as a teacher under clause (d) of section 12"
Thus, the 1993 Act clearly empowers the National Council For Teacher Education to issue guidelines in respect of minimum qualifications for a person to be employed as a teacher. Regulation making powers further empowers it to lay down the norms, guidelines and standards in respect of minimum qualifications.
It is relevant to look into the guidelines issued by the National Council For Teacher Education. The guidelines circulated by letter dated 11.2.2011 are part of the writ petition which has been filed as Annexure-5. Paragraphs 1,2 and 3 which gives the background and paragraph 9 which provides for qualifying marks are relevant, which are quoted below:
"The implementation of the Right of Children to Free and Compulsory Education (RTE) Act, 2009 requires the recruitment of a large number of teachers across the country in a time bound manner. Inspite of the enormity of the task, it is desirable to ensure that quality requirement for recruitment of teachers are not diluted at any cost. It is therefore necessary to ensure that persons recruited as teachers possess the essential aptitude and ability to meet the challenges of teaching at the primary and upper primary level.
2 In accordance with the provisions of sub-section (1) of section 23 of the Right of Children to Free and Compulsory Education (RTE) Act, 2009, the National Council for Teacher Education (NCTE) has laid down the minimum qualifications for a person to be eligible for appointment as a teacher in class I to VIII, vide its Notification dated August 23, 2010. A copy of the Notification is attached at Annexure 1. One of the essential qualifications for a person to be eligible for appointment as a teacher in any of the schools referred to in clause (n) of section 2 of the RTE Act is that he/she should pass the Teacher Eligibility Test (TET) which will be conducted by the appropriate Government.
3 The rationale for including the TET as a minimum qualification for a person to be eligible for appointment as a teacher is as under:
i. It would bring national standards and benchmark of teacher quality in the recruitment process;
ii. It would induce teacher education institutions and students from these institutions to further improve their performance standards;
iii.It would send a positive signal to all stakeholders that the Government lays special emphasis on teacher quality
Qualifying marks
9 A person who scores 60% or more in the TET exam will be considered as Teachers Eligibility Test pass. School managements (Government, local bodies, government aided and unaided)
(a) may consider giving concessions to persons belonging to SC/ST, OBC, differently abled persons, etc., in accordance with their extant reservation policy;
(b) should give weightage to the TET scores in the recruitment process; however, qualifying the TET would not confer a right on any person for recruitment/employment as it is only one of the eligibility criteria for appointment"
The guidelines dated 11.2.2011 came for consideration before the Full Bench of this Court in Shiv Kumar Sharma's case (supra). The Full Bench after noticing section 12A of the 1993 Act, laid down that the National Council For Teacher Education is authority to fix the norms and qualifications for teachers of all categories of institutions. The provisions of guidelines dated 11.2.2011 providing that State should give weightage to the marks in Teachers Eligibility Test for appointment of teachers were specifically considered by the Full Bench and it was held that the said guidelines are binding. Paragraphs 85 and 88 of the judgment which laid down the above proposition, are quoted herein below:
"85. Thus in addition to the provisions under 2009 Act this fruitful amendment has re-emphasised the authority of the National Council for Teacher Education to fix norms and qualifications that are to be possessed by teachers of all categories of institutions including elementary education.
88.It may be emphasised that there is no challenge raised to such appointments against rules, but the law is certain that appointment de-hors the rules cannot be said to be valid. After the enforcement of the notification dated 23.8.2010 every candidate aspiring to become a teacher of elementary education in any of the institutions defined under the 2009 Act has to be possessed of the qualifications prescribed therein. The intention therefore of the legislature is clear that no teacher without such a qualification can be allowed to continue as a teacher in the institution. We wish to clarify that the binding effect of the notifications and the guidelines is such that the weightage which is contemplated under the guidelines dated 11th February, 2011 cannot be ignored. The minimum score that is required of a candidate is 60% to pass the teacher eligibility test. A concession of 5% has been made in favour of the reserved category candidates including the physically challenged and disabled persons. This norm therefore cannot be diluted. Apart from this, the State Government has to take notice of the fact that weightage has to be given in the recruitment process as well. It is for the State Government to suitably adopt the said guidelines and we do not wish to add anything further at this stage as we are only concerned with the essentiality of the qualification of the teacher eligibility test to be possessed by any candidate aspiring to be appointed as a teacher."
The guidelines which have been issued by the National Council For Teacher Education are incidental and consequential to the object which is sought to be achieved by the 1993 Act and 2009 Act. Statutory authority has to be conceded all incidental and consequential powers, which effectuates the purpose and object of the Act. In this context, it is useful to quote the observations made by the apex Court in 1982(2) SCC 7 V.T. Khanzode & Ors vs Reserve Bank Of India & Anr in paragraph 16, which are as follows:
"The doctrine of ultra vires in relation to the powers of a statutory corporation has to be understood reasonably and so understood, "whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorised ought not (unless expressly prohibited) to be held by judicial construction, to be ultra vires." (See Attorney-General v. Great Eastern Ry. Co.(2) The Central Board has, therefore, the power to make service regulations under section 58 (1) of the Act."
We thus, respectfully following the Full Bench judgment in
Shiv Kumar Sharma and others Vs. State of U.P. and others (supra), conclude that the guidelines dated 11.2.2011 are binding on the State, which could not be disregarded by the State, while proceeding to make recruitment of Assistant Master/Assistant Mistress in primary schools run by the U.P. Basic Education Board.
Issues Nos.4,5 and 6
The learned Single in his impugned judgment dated 16.1.2013, has answered all the above three issues in favour of the appellants. The learned Single Judge held that both the grounds mentioned in the resolution of the State Government as notified under the Government Order dated 26.7.2012 are not in conformity with law. It is useful to quote the relevant findings given by the learned Single Jude in his order dated 16.1.2013 holding that the reasons mentioned in the resolution of the State Government as notified under the Government Order dated 26.7.2012 are not in conformity with law. Following was observed by the learned Single Judge.
"Similarly, this Court also finds force in the contention of the petitioners that merely because some malpractices had been noticed in holding of the TET Examination, the State Government could have taken a decision to cancel the proceedings of selection in terms of the advertisement dated 30.11.2011, inasmuch as as per the records made available to this Court, the mal practice is confined to very few districts of the State. If necessary, an attempt could have been made to segregate the bad part from the good part. This Court therefore holds that both the grounds mentioned in the resolution of the State Government as notified under the Government Order dated 26.07.2012 are not in conformity in law."
The learned Single while considering the 15th amendment Rules, 2012, has held that the 15th amendment Rules, 2012, shall not adversely affect the selection proceedings which had already begun and 15th amendment Rules, 2012, shall only be prospective in nature. In this context following are the findings recorded by the learned Single Judge.
"Once the applicability of the '1981 Rules' to the posts advertised is answered in affirmative, the second question to be determined is as to whether the 15th amendment in the '1981 Rules' should have adversely affected the proceedings of the selections initiated under the advertisement dated 30.11.2011? The issue may not detain the Court for long. The Apex Court has repeatedly held that any amendment in the Rules laying down the manner for selection/appointment would be prospective in nature.
Once the vacancies have been advertised and the process of selection has commenced, then any subsequent amendment will not affect the proceedings of selection already initiated (Ref: P. Mahendran & others Vs. State of Karnataka & others, AIR 1990 SC, 405). This Court, therefore, holds that irrespective of the amendments made in '1981 Rules', the process of selection initiated under the advertisement dated 30.11.2011 could not have been adversely affected because of the 15th amendment in '1981 Rules'."
Although the learned Single Judge had decided all the above three issues in favour of the appellants, but Shri C.B. Yadav, learned Additional Advocate General in these appeals has challenged the aforesaid view of the learned Single Judge and supported the judgment dismissing the writ petition.
Learned Counsel appearing for the appellants in their submissions have supported the above finding of the learned Single Judge which were in their favour. Challenge to the 15th amendment rules, 2012, has been reiterated before us. Learned counsel for the appellants has requested to consider the prayer for declaring the 15th amendment rules, 2012 invalid which prayer was prayed to be added in the Writ Petition No.39674/2012 by filing an amendment application. Learned Single Judge noted the amendment prayed for but we do not find any formal order for adding the prayer. We permit the prayers as made in the amendment application to be added in the writ petition.
Continued.....
