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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4347-4375 OF 2014
STATE OF U.P. AND ORS. ETC. ETC. …Appellants
Versus
SHIV KUMAR PATHAK AND ORS.ETC. ETC. …
Respondents
WITH
CIVIL APPEAL NO. 4376 OF 2014
CIVIL APPEAL NO. 9530 OF 2017 @ SLP(C) No. 19087 OF 2017 @ SLP(C)…….
CC 10408 OF 2014,
CIVIL APPEAL NO. 9704 OF 2017 @ SLP(C)No. 11671 OF 2014
CIVIL APPEAL NO. 9705 OF 2017 @ SLP(C)NO. 11673 OF 2014
W.P.(C)No. 135 OF 2015, W.P.(C)No. 89 OF 2015,
CIVIL APPEAL NO.9707 OF 2017 @ SLP(C)No. 62 OF 2014
CIVIL APPEAL NO.9708 OF 2017@ SLP(C)No. 1672 OF 2014
CIVIL APPEAL NO.9709 OF 2017@ SLP(C)No. 1674 OF 2014,
CONT. PETN(C)NOS. 199 OF 2015, 399 OF 2015, 262 OF 2016, 265 OF 2016,
264 OF 2016, 263 OF 2016, 266 OF 2016, 192 OF 2016, 191 OF 2016, 189
OF 2016, 190 OF 2016, 287 OF 2016, 286 OF 2016, 285 OF 2016, 290 OF
2016, 452 OF 2016, 454 OF 2016, 538 OF 2016, 537 OF 2016, 752 OF 2016,
776 OF 2016, 780 OF 2016, 607 OF 2017, 626 OF 2017, 627 OF 2017, 652
OF 2017 AND 651 OF 2017 IN CIVIL APPEAL NOS. 4347-4375 OF 2014 AND
WRIT PETITION (CIVIL)No. 100 OF 2016
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. This batch of cases arises out of judgment of the Allahabad
High Court dated 20th November, 2013 in Shiv Kumar Pathak
1
and Ors. v. State of U.P. and ors.1
and involves the question
of validity of decision of the State of Uttar Pradesh in prescribing
qualifications for recruitment of teachers at variance with the
guidelines of the National Council for Teachers Education (NCTE)
dated 11th February, 2011 under Section 12(d) read with Section
12A of the National Council for Teachers Education Act, 1993
(NCTE Act) and Section 23 of the Right of Children to Free and
Compulsory Education Act, 2009 (RTE Act) on the ground of
repugnancy of State law with the Central law on a subject falling
in concurrent list.
2. The following questions for consideration were framed by
this Court vide its order dated 2nd November, 2015:
a) Whether the NCTE guidelines fixing the minimum
qualification are arbitrary and unreasonable?
b) Whether the marks obtained in the TET
Examination is the sole criterion for filling up the
vacancies?
c) Whether the High Court is justified in declaring [sic
quashing] the 15th Amendment brought in on
1 2013(10) ADJ 121
2
31.08.2012 to the U.P. Basic Education (Teachers)
Service Rules, 1981?
d) Assuming, the guidelines framed by the NCTE are
treated as intra vires, the question will be what
interpretation would be placed by the Court on the
concept of weightage as mentioned in the
guidelines of the NCTE?
3. It will be appropriate to mention the background facts briefly
for deciding the above questions. The Uttar Pradesh Basic
Education Act, 1972 was enacted by the State of Uttar Pradesh to
regulate basic education. The Act sets up a Board which is to
organize, coordinate and control the imparting of basic education
and teachers’ training. The State of Uttar Pradesh framed 1981
Rules under the Act to deal with the appointment of teachers.
4. In the wake of Eighty-Sixth Amendment to the Constitution
of India inserting Article 21A for providing free and compulsory
education to children of age of 6 to 14 years, the RTE Act was
enacted. The RTE Act inter alia lays down qualifications for
appointment and terms and conditions of service of teachers.
3
The Central Government in exercise of its powers under Section
23 of the Act, issued Notification dated 31st March, 2010
authorising the NCTE as the “academic authority” to lay down the
minimum qualifications for a person to be eligible for appointment
as a teacher. The NCTE thereafter issued Notification dated 23rd
August, 2010 laying down qualifications for appointment of
teachers for elementary education. The NCTE also issued
guidelines dated 11th February, 2011 for conduct of Teachers
Eligibility Test (TET) and also providing for weightage to the marks
in the said test for recruitment of teachers. The 1981 Rules of the
State were amended on 9th November, 2011 (the 12th
Amendment) to bring the same in consonance with the
Notifications dated 23rd August, 2010 and 11th February, 2011.
Accordingly, the TET was held on 13th November, 2011 and result
thereof was declared on 25th November, 2011. Thereafter on 30th
November, 2011, an advertisement was issued for appointment of
‘trainee teachers’ in primary schools. The candidates submitted
their applications. However, the said advertisement was
cancelled and a fresh advertisement dated 7th December, 2012
was issued which came to be challenged and has been set aside
4
by the impugned judgment. The justification given by the State of
Uttar Pradesh for such cancellation is that the result of TET was
influenced by the money consideration. On 31st December, 2011
the amount of several lacs was seized with lists of candidates.
FIR No. 675 of 2011 was lodged. Residence of Director of
Secondary Education was also searched leading to recovery of
certain lists and cash. The State constituted a high powered
committee headed by the Chief Secretary on 10th April, 2012
which gave its report dated 1st May, 2012. It was recommended
that candidates found involved in any irregularity/criminal activity
in the TET examination be prohibited from the selection. The
State Government took a decision dated 26th July, 2012 which was
followed by 15th Amendment to the 1981 rules on 31st August,
2012 to the effect that instead of giving weightage to the TET
marks as per 12th Amendment, the criteria of ‘quality point marks’
as prevalent prior to 12th Amendment was adopted. This
amendment was challenged on the ground that it rendered the
rules inconsistent with the NCTE guidelines referred to above.
5. Writ petitions were filed by the affected candidates against
the cancellation of advertisement dated 30th November, 2011 and
5
the new advertisement dated 7th December, 2012 incorporating
the criteria by way of 15th Amendment to the Rules which was at
variance with the guidelines of the NCTE dated 11th February,
2011, supra to the extent that weightage for marks in TET was
not contemplated.
6. The Single Judge of the High Court dismissed the writ
petitions vide order dated 16th January, 20132
. Appeal against the
said judgment has been allowed by the Division Bench by the
impugned order. The Division Bench inter alia followed the
judgment dated 31st May, 2013 by three Judges (Full Bench) in
Shiv Kumar Sharma and Ors. v. State of U.P. and ors.3
The
High Court held that the decision dated 26th July, 2012 of the
State Government to change the criteria of selection by way of
15th Amendment in the Rules to make TET as a minimum
qualification (without giving weightage for the marks in the said
qualification as per NCTE guidelines) and cancelling the
advertisement dated 30th November, 2011 was not sustainable
and that the NCTE guidelines were binding. Accordingly, the
2 WP No. 39674 of 2012 Akhilesh Tripathi v. State of U.P.
3 2013(6) ADJ 310
6
State was directed to proceed and conclude the selection as per
advertisement dated 30th November, 2011.
7. Before proceeding further, it will be appropriate to reproduce
the statutory provisions and the notifications to the extent
relevant which are as follows:
“Sections 12 and 12A of the NCTE Act
12. Functions of the Council. – It shall be the
duty of the Council to take all such steps as it
may think fit for ensuring planned and
coordinated 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 recognized institutions.
… … …
… … …
12A. For the purpose of maintaining standards
of education in schools, the Council may, by
regulations, determine the qualifications of
persons for being recruited as teachers in any
pre-primary, primary, upper primary, secondary,
senior secondary or intermediate school or
college, by whatever name called, established,
run, aided or recognized by the Central
7
Government or a State Government or a local or
other authority:
Provided that nothing in this section shall
adversely affect the continuance of any person
recruited in any pre-primary, primary, upper
primary, secondary, senior secondary or
intermediate schools or colleges, under any rule,
regulation or order made by the Central
Government, a State Government, a local or
other authority, immediately before the
commencement of the National Council for
Teacher Education (Amendment) Act, 2011 solely
on the ground of non-fulfilment of such
qualifications as may be specified by the
Council:
Provided further that the minimum qualifications
of a teacher referred to in the first proviso shall
be acquired within the period specified in this
Act or under the Right of Children to Free and
Compulsory Education Act, 2009.”
Section 23 of the RTE Act
“23. Qualifications for appointment and terms
and conditions of service of teachers.-(1) Any
person possessing such minimum qualifications,
as laid down by an academic authority,
authorised by the Central Government, by
notification, shall be eligible for appointment as
a teacher.
(2) Where a State does not have adequate
institutions offering courses or training in
teacher education, or teachers possessing
minimum qualifications as laid down under
sub-section (1) are not available in sufficient
numbers, the Central Government may, if it
deems necessary, by notification, relax the
minimum qualifications required for appointment
as a teacher, for such period, not exceeding five
8
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.
… … …
… … …”
8. Notifications dated 31st March, 2010 and 23rd August, 2010
issued by the NCTE are as under:
Notification dated 31st
March, 2010
“NATIONAL COUNCIL FOR TEACHER EDUCATION
NOTIFICATION
New Delhi, the 31st March, 2010
S.O.750(E).- 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, the Central Government hereby authorizes
the National Council for Teacher Education as the
academic authority to lay down the minimum
qualifications for a person to be eligible for
appointment as a teacher.
Notification dated 23rd
August, 2010
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),
9
and in pursuance of Notification No. S.O. 750(E) :
MANU/HRDT/0013/2010 dated 31st March, 2010
issued by the Department of School Education
and Literacy, Ministry of Human Resource
Development, Government of India, the National
Council for Teacher Education (NCTE) hereby
lays down the following minimum qualifications
for a person to be eligible for appointment as a
teacher in class I to VIII in a school referred to in
clause (n) of Section 2 of the Right of Children to
Free and Compulsory Education Act, 2009, with
effect from the date of this notification:-
1. Minimum Qualifications:-
(i) CLASSES I-V
(a) Senior Secondary (or its equivalent) with at
least 50% marks and 2 year Diploma in
Elementary Education (by whatever name
known)
OR
Senior Secondary (or its equivalent) with at least
45% marks and 2 year Diploma in Elementary
Education (by whatever name known), in
accordance with the NCTE (Recognition Norms
and Procedure), Regulations 2002.
OR
Senior Secondary (or its equivalent) with at least
50% marks and 4 year Bachelor of Elementary
Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at least
50% marks and 2 year Diploma in Education
(Special Education)
10
AND
(b) Pass in the Teacher Eligibility Text (TET), to
be conducted by the appropriate Government in
accordance with the Guidelines framed by the
NCTE for the purpose.
(ii) Classes VI-VIII
(a) B.A/B.Sc. and 2 year Diploma in Elementary
Education (by whatever name known)
OR
B.A/B.Sc. with at least 50% marks and 1 year
Bachelor in Education (B.Ed.)
OR
B.A/B.Sc. with at least 45% marks and 1 year
Bachelor in Education (B.Ed.), in accordance with
the NCTE (Recognition Norms and Procedure)
Regulations issued from time to time in this
regard.
OR
Senior Secondary (or its equivalent) with at least
50% marks and 4 year Bachelor in Elementary
Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at least
50% marks and 4 year BA/B.Sc. Ed or
B.A.Ed./B.Sc. Ed.
OR
B.A./B.Sc. with at least 50% marks and 1 year
B.Ed. (Special Education)
11
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.”
9. Notifications issued by the NCTE on 11th February, 2011 and
29th July, 2011 are as follows:
Notification dated 11th
February, 2011
“The implementation of the Right of Children to
Free and Compulsory Education (RTE) Act, 2009
requires the recruitment of a large number of
12
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
13
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.”
Notification dated 29th
July, 2011
“(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....”
14
10. Though the State Government made an amendment in the
1981 Rules on 9th November, 2011 by providing that the names of
the candidates shall be placed in descending order on the basis of
the marks obtained in Teacher Eligibility Test conducted by the
Government of Uttar Pradesh, this scheme was given a go bye by
withdrawing the amendment of Rule 14 and restoring the position
as it stood prior to 12th Amendment [of selecting teachers on the
basis of ‘quality points’ as per appendix to Rule 14(3)] by
Amendment dated 31st August, 2012 to the following effect:
“(3) The names of candidates in the list prepared
under sub-rule (2) shall then be arranged in such
manner that the candidate shall be arranged in
accordance with the quality points specified in
appendix. In the said rules the following
appendix shall be inserted at the end.
Provided that if two or more candidates obtain
equal marks, the candidate senior in age shall be
placed higher.”
11. Rule 14(4) of the 1981 Rules of the State prior to the
Notification dated 23rd August, 2010 which was restored in 2012
was as follows:
“(4) The names of candidates in the list prepared
under sub-rule (2) shall then be arranged in such
manner that the candidates who have passed
the required training course earlier in point of
time shall be placed higher than those who have
15
passed the said training course later and the
candidates who have passed the training course
in a particular year shall be arranged in
accordance with the quality points specified in
the Appendix.
”
16
12. We have heard learned counsel for the parties. Main
contention raised on behalf of State of Uttar Pradesh is that while
it was permissible for the Central Government to lay down
eligibility qualifications for appointment of a teacher for
elementary education by virtue of Section 23 of the RTE Act, the
NCTE could not lay down any guideline so as to affect the power
of a State to prescribe norms for selection of a teacher consistent
with the qualifications under Section 23 of the RTE Act.
13. On the other hand, the stand of the original writ petitioners
is that the subject of education falls under Entry 25 of List III of 7th
Schedule of the Constitution after the 42nd Amendment. Thus, by
virtue of Article 254 of the Constitution, the law made by the
Parliament prevails over any law made by the State. It was
submitted that The NCTE Act has been enacted by the Parliament
to achieve ‘planned and coordinated development of the teacher
education system’. The Council constituted under the Act is
empowered to issue guidelines under Sections 12 and 12A for
ensuring planned and coordinated development of teacher
education and also to lay down guidelines in respect of minimum
qualifications for a person to be employed as a teacher. Further,
17
vide Notification dated 31st March, 2010 under Section 23 of the
RTE Act, the Central Government has authorized the NCTE as the
‘academic authority’ to lay down minimum qualifications for a
person to be eligible for appointment as a teacher.
14. Learned counsel for the NCTE submitted that notification
dated 11th February, 2011 suggesting weightage to TET marks
was merely a guideline and was not intended to be binding on the
States. While TET was a mandatory requirement, weightage to
the marks in the TET was merely a suggestion. This stand has
also been taken by some of the learned counsel in connected
matters. Reliance was placed on the stand of the NCTE in its
affidavit dated 1st May, 2014 in CWP 346 of 2013 before the
Punjab and Haryana High Court as follows:
“That in view of the said recommendations of the
Committee, it is stated that the guidelines
contained in Clause 10 and 11 of NCTE guidelines
dated 11th February, 2011 are directory in nature.
Appropriate Government may in its own wisdom
decide as to the eligible candidates on the basis
of having qualified the Central Teachers Eligibility
Test. However, education being the subject
matter of concurrent list of the power to frame
appropriate legislation/regulations/rules works
with the appropriate legislature of the State
Government and as such State Government is
18
well within as rights to prescribe the qualification
of eligibility in the form that the candidates
wanting to apply for the said post must
necessarily qualify the Teachers Eligibility Test of
said State. There would be no legality in the
same and merely because a state government
had failed to conduct the State Teachers Eligibility
Test (STET) in a given year would not amount to
taking a decision not to hold the exams and to
hold the candidates having qualified Central
Teacher Eligibility Test as eligible.”
15. Reliance was also placed on clarification dated 2nd
September, 2016 by NCTE in reply to a question under the Right
to Information Act, 2005(at page no. 733 of the SLP paper book in
SLP(Civil)No. 1121 of 2017) as follows:
“1. CTET/TET is an examination to qualify to
become eligible for appointment as a teacher
from classes I to VIII.
2. There is no binding to State/Central
Government to select the candidate as a teacher
basis on TET marks. TET is just eligibility for the
appointment of teachers.”
16. There is no manner of doubt that the NCTE, acting as an
‘academic authority’ under Section 23 of the RTE Act, under the
Notification dated 31st March, 2010 issued by the Central
Government as well as under Sections 12 and 12A of the NCTE
19
Act, was competent to issue Notifications dated 23rd August, 2010
and 11th February, 2011. The State Government was under
obligation to act as per the said notifications and not to give
effect to any contrary rule. However, since NCTE itself has taken
the stand that notification dated 11th February, 2011 with regard
to the weightage to be given to the marks obtained in TET is not
mandatory which is also a possible interpretation, the view of the
High Court in quashing the 15th Amendment to the 1981 Rules has
to be interfered with. Accordingly, while we uphold the view that
qualifications prescribed by the NCTE are binding, requirement of
weightage to TET marks is not a mandatory requirement.
17. As a result of above, in normal course the State would have
been at liberty to proceed with the selection in terms of
advertisement dated 7th December, 2012 in accordance with the
amended rules by way of 15th amendment, in view of
developments which have taken place during pendency of these
appeals, the said advertisement cannot proceed and while
upholding the said advertisement, relief has to be moulded in the
light of developments that have taken place in the interregnum.
20
18. Vide interim order dated 25th March, 2014, this Court
directed the State of Uttar Pradesh to fill up the vacancies of
Assistant Teachers in terms of the impugned judgment.
Thereafter, on 17th December, 2014, the said order was modified
and the State was directed to appoint candidates whose names
were not involved in malpractices in the TET test and who had
obtained 70% marks (65% for SC, ST, OBC and physically
handicapped or any other category covered by the Government
policy for reservation). 54,464 posts have already been filled up in
compliance of the orders of this Court. The said appointments
were subject to result of these matters. It was also observed that
if anyone without TET qualification is appointed his services will
be terminated. Vide order dated 2nd November, 2015 it was noted
that against 72,825 posts which were advertised, 43,077
candidates had completed training and were working while
15,058 candidates were undergoing training. Around 14,690
posts were vacant. It was further observed that candidates who
had the required percentage of marks in terms of order dated 27th
July, 2015 were to file their applications and a Committee
21
constituted for the said purpose could verify such percentage and
if parity was found the same benefit could be extended.
19. We have been informed that 66,655 teachers have already
been appointed in pursuance of the interim orders of this Court.
Having regard to the entirety of circumstances, we are not
inclined to disturb the same. We make it clear that the State is at
liberty to fill up the remaining vacancies in accordance with law
after issuing a fresh advertisement.
20. The matters will stand disposed of in above terms.
…………………………………….J.
(Adarsh Kumar Goel)
…………………………………….J.
(Uday Umesh Lalit)
New Delhi;
25th July, 2017.
22
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Jald Hi Hamara Blog Vistar Se Aapko Order Ki Sameeksha Va Saral Anuvad Prastut karegaa
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4347-4375 OF 2014
STATE OF U.P. AND ORS. ETC. ETC. …Appellants
Versus
SHIV KUMAR PATHAK AND ORS.ETC. ETC. …
Respondents
WITH
CIVIL APPEAL NO. 4376 OF 2014
CIVIL APPEAL NO. 9530 OF 2017 @ SLP(C) No. 19087 OF 2017 @ SLP(C)…….
CC 10408 OF 2014,
CIVIL APPEAL NO. 9704 OF 2017 @ SLP(C)No. 11671 OF 2014
CIVIL APPEAL NO. 9705 OF 2017 @ SLP(C)NO. 11673 OF 2014
W.P.(C)No. 135 OF 2015, W.P.(C)No. 89 OF 2015,
CIVIL APPEAL NO.9707 OF 2017 @ SLP(C)No. 62 OF 2014
CIVIL APPEAL NO.9708 OF 2017@ SLP(C)No. 1672 OF 2014
CIVIL APPEAL NO.9709 OF 2017@ SLP(C)No. 1674 OF 2014,
CONT. PETN(C)NOS. 199 OF 2015, 399 OF 2015, 262 OF 2016, 265 OF 2016,
264 OF 2016, 263 OF 2016, 266 OF 2016, 192 OF 2016, 191 OF 2016, 189
OF 2016, 190 OF 2016, 287 OF 2016, 286 OF 2016, 285 OF 2016, 290 OF
2016, 452 OF 2016, 454 OF 2016, 538 OF 2016, 537 OF 2016, 752 OF 2016,
776 OF 2016, 780 OF 2016, 607 OF 2017, 626 OF 2017, 627 OF 2017, 652
OF 2017 AND 651 OF 2017 IN CIVIL APPEAL NOS. 4347-4375 OF 2014 AND
WRIT PETITION (CIVIL)No. 100 OF 2016
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. This batch of cases arises out of judgment of the Allahabad
High Court dated 20th November, 2013 in Shiv Kumar Pathak
1
and Ors. v. State of U.P. and ors.1
and involves the question
of validity of decision of the State of Uttar Pradesh in prescribing
qualifications for recruitment of teachers at variance with the
guidelines of the National Council for Teachers Education (NCTE)
dated 11th February, 2011 under Section 12(d) read with Section
12A of the National Council for Teachers Education Act, 1993
(NCTE Act) and Section 23 of the Right of Children to Free and
Compulsory Education Act, 2009 (RTE Act) on the ground of
repugnancy of State law with the Central law on a subject falling
in concurrent list.
2. The following questions for consideration were framed by
this Court vide its order dated 2nd November, 2015:
a) Whether the NCTE guidelines fixing the minimum
qualification are arbitrary and unreasonable?
b) Whether the marks obtained in the TET
Examination is the sole criterion for filling up the
vacancies?
c) Whether the High Court is justified in declaring [sic
quashing] the 15th Amendment brought in on
1 2013(10) ADJ 121
2
31.08.2012 to the U.P. Basic Education (Teachers)
Service Rules, 1981?
d) Assuming, the guidelines framed by the NCTE are
treated as intra vires, the question will be what
interpretation would be placed by the Court on the
concept of weightage as mentioned in the
guidelines of the NCTE?
3. It will be appropriate to mention the background facts briefly
for deciding the above questions. The Uttar Pradesh Basic
Education Act, 1972 was enacted by the State of Uttar Pradesh to
regulate basic education. The Act sets up a Board which is to
organize, coordinate and control the imparting of basic education
and teachers’ training. The State of Uttar Pradesh framed 1981
Rules under the Act to deal with the appointment of teachers.
4. In the wake of Eighty-Sixth Amendment to the Constitution
of India inserting Article 21A for providing free and compulsory
education to children of age of 6 to 14 years, the RTE Act was
enacted. The RTE Act inter alia lays down qualifications for
appointment and terms and conditions of service of teachers.
3
The Central Government in exercise of its powers under Section
23 of the Act, issued Notification dated 31st March, 2010
authorising the NCTE as the “academic authority” to lay down the
minimum qualifications for a person to be eligible for appointment
as a teacher. The NCTE thereafter issued Notification dated 23rd
August, 2010 laying down qualifications for appointment of
teachers for elementary education. The NCTE also issued
guidelines dated 11th February, 2011 for conduct of Teachers
Eligibility Test (TET) and also providing for weightage to the marks
in the said test for recruitment of teachers. The 1981 Rules of the
State were amended on 9th November, 2011 (the 12th
Amendment) to bring the same in consonance with the
Notifications dated 23rd August, 2010 and 11th February, 2011.
Accordingly, the TET was held on 13th November, 2011 and result
thereof was declared on 25th November, 2011. Thereafter on 30th
November, 2011, an advertisement was issued for appointment of
‘trainee teachers’ in primary schools. The candidates submitted
their applications. However, the said advertisement was
cancelled and a fresh advertisement dated 7th December, 2012
was issued which came to be challenged and has been set aside
4
by the impugned judgment. The justification given by the State of
Uttar Pradesh for such cancellation is that the result of TET was
influenced by the money consideration. On 31st December, 2011
the amount of several lacs was seized with lists of candidates.
FIR No. 675 of 2011 was lodged. Residence of Director of
Secondary Education was also searched leading to recovery of
certain lists and cash. The State constituted a high powered
committee headed by the Chief Secretary on 10th April, 2012
which gave its report dated 1st May, 2012. It was recommended
that candidates found involved in any irregularity/criminal activity
in the TET examination be prohibited from the selection. The
State Government took a decision dated 26th July, 2012 which was
followed by 15th Amendment to the 1981 rules on 31st August,
2012 to the effect that instead of giving weightage to the TET
marks as per 12th Amendment, the criteria of ‘quality point marks’
as prevalent prior to 12th Amendment was adopted. This
amendment was challenged on the ground that it rendered the
rules inconsistent with the NCTE guidelines referred to above.
5. Writ petitions were filed by the affected candidates against
the cancellation of advertisement dated 30th November, 2011 and
5
the new advertisement dated 7th December, 2012 incorporating
the criteria by way of 15th Amendment to the Rules which was at
variance with the guidelines of the NCTE dated 11th February,
2011, supra to the extent that weightage for marks in TET was
not contemplated.
6. The Single Judge of the High Court dismissed the writ
petitions vide order dated 16th January, 20132
. Appeal against the
said judgment has been allowed by the Division Bench by the
impugned order. The Division Bench inter alia followed the
judgment dated 31st May, 2013 by three Judges (Full Bench) in
Shiv Kumar Sharma and Ors. v. State of U.P. and ors.3
The
High Court held that the decision dated 26th July, 2012 of the
State Government to change the criteria of selection by way of
15th Amendment in the Rules to make TET as a minimum
qualification (without giving weightage for the marks in the said
qualification as per NCTE guidelines) and cancelling the
advertisement dated 30th November, 2011 was not sustainable
and that the NCTE guidelines were binding. Accordingly, the
2 WP No. 39674 of 2012 Akhilesh Tripathi v. State of U.P.
3 2013(6) ADJ 310
6
State was directed to proceed and conclude the selection as per
advertisement dated 30th November, 2011.
7. Before proceeding further, it will be appropriate to reproduce
the statutory provisions and the notifications to the extent
relevant which are as follows:
“Sections 12 and 12A of the NCTE Act
12. Functions of the Council. – It shall be the
duty of the Council to take all such steps as it
may think fit for ensuring planned and
coordinated 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 recognized institutions.
… … …
… … …
12A. For the purpose of maintaining standards
of education in schools, the Council may, by
regulations, determine the qualifications of
persons for being recruited as teachers in any
pre-primary, primary, upper primary, secondary,
senior secondary or intermediate school or
college, by whatever name called, established,
run, aided or recognized by the Central
7
Government or a State Government or a local or
other authority:
Provided that nothing in this section shall
adversely affect the continuance of any person
recruited in any pre-primary, primary, upper
primary, secondary, senior secondary or
intermediate schools or colleges, under any rule,
regulation or order made by the Central
Government, a State Government, a local or
other authority, immediately before the
commencement of the National Council for
Teacher Education (Amendment) Act, 2011 solely
on the ground of non-fulfilment of such
qualifications as may be specified by the
Council:
Provided further that the minimum qualifications
of a teacher referred to in the first proviso shall
be acquired within the period specified in this
Act or under the Right of Children to Free and
Compulsory Education Act, 2009.”
Section 23 of the RTE Act
“23. Qualifications for appointment and terms
and conditions of service of teachers.-(1) Any
person possessing such minimum qualifications,
as laid down by an academic authority,
authorised by the Central Government, by
notification, shall be eligible for appointment as
a teacher.
(2) Where a State does not have adequate
institutions offering courses or training in
teacher education, or teachers possessing
minimum qualifications as laid down under
sub-section (1) are not available in sufficient
numbers, the Central Government may, if it
deems necessary, by notification, relax the
minimum qualifications required for appointment
as a teacher, for such period, not exceeding five
8
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.
… … …
… … …”
8. Notifications dated 31st March, 2010 and 23rd August, 2010
issued by the NCTE are as under:
Notification dated 31st
March, 2010
“NATIONAL COUNCIL FOR TEACHER EDUCATION
NOTIFICATION
New Delhi, the 31st March, 2010
S.O.750(E).- 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, the Central Government hereby authorizes
the National Council for Teacher Education as the
academic authority to lay down the minimum
qualifications for a person to be eligible for
appointment as a teacher.
Notification dated 23rd
August, 2010
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),
9
and in pursuance of Notification No. S.O. 750(E) :
MANU/HRDT/0013/2010 dated 31st March, 2010
issued by the Department of School Education
and Literacy, Ministry of Human Resource
Development, Government of India, the National
Council for Teacher Education (NCTE) hereby
lays down the following minimum qualifications
for a person to be eligible for appointment as a
teacher in class I to VIII in a school referred to in
clause (n) of Section 2 of the Right of Children to
Free and Compulsory Education Act, 2009, with
effect from the date of this notification:-
1. Minimum Qualifications:-
(i) CLASSES I-V
(a) Senior Secondary (or its equivalent) with at
least 50% marks and 2 year Diploma in
Elementary Education (by whatever name
known)
OR
Senior Secondary (or its equivalent) with at least
45% marks and 2 year Diploma in Elementary
Education (by whatever name known), in
accordance with the NCTE (Recognition Norms
and Procedure), Regulations 2002.
OR
Senior Secondary (or its equivalent) with at least
50% marks and 4 year Bachelor of Elementary
Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at least
50% marks and 2 year Diploma in Education
(Special Education)
10
AND
(b) Pass in the Teacher Eligibility Text (TET), to
be conducted by the appropriate Government in
accordance with the Guidelines framed by the
NCTE for the purpose.
(ii) Classes VI-VIII
(a) B.A/B.Sc. and 2 year Diploma in Elementary
Education (by whatever name known)
OR
B.A/B.Sc. with at least 50% marks and 1 year
Bachelor in Education (B.Ed.)
OR
B.A/B.Sc. with at least 45% marks and 1 year
Bachelor in Education (B.Ed.), in accordance with
the NCTE (Recognition Norms and Procedure)
Regulations issued from time to time in this
regard.
OR
Senior Secondary (or its equivalent) with at least
50% marks and 4 year Bachelor in Elementary
Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at least
50% marks and 4 year BA/B.Sc. Ed or
B.A.Ed./B.Sc. Ed.
OR
B.A./B.Sc. with at least 50% marks and 1 year
B.Ed. (Special Education)
11
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.”
9. Notifications issued by the NCTE on 11th February, 2011 and
29th July, 2011 are as follows:
Notification dated 11th
February, 2011
“The implementation of the Right of Children to
Free and Compulsory Education (RTE) Act, 2009
requires the recruitment of a large number of
12
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
13
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.”
Notification dated 29th
July, 2011
“(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....”
14
10. Though the State Government made an amendment in the
1981 Rules on 9th November, 2011 by providing that the names of
the candidates shall be placed in descending order on the basis of
the marks obtained in Teacher Eligibility Test conducted by the
Government of Uttar Pradesh, this scheme was given a go bye by
withdrawing the amendment of Rule 14 and restoring the position
as it stood prior to 12th Amendment [of selecting teachers on the
basis of ‘quality points’ as per appendix to Rule 14(3)] by
Amendment dated 31st August, 2012 to the following effect:
“(3) The names of candidates in the list prepared
under sub-rule (2) shall then be arranged in such
manner that the candidate shall be arranged in
accordance with the quality points specified in
appendix. In the said rules the following
appendix shall be inserted at the end.
Provided that if two or more candidates obtain
equal marks, the candidate senior in age shall be
placed higher.”
11. Rule 14(4) of the 1981 Rules of the State prior to the
Notification dated 23rd August, 2010 which was restored in 2012
was as follows:
“(4) The names of candidates in the list prepared
under sub-rule (2) shall then be arranged in such
manner that the candidates who have passed
the required training course earlier in point of
time shall be placed higher than those who have
15
passed the said training course later and the
candidates who have passed the training course
in a particular year shall be arranged in
accordance with the quality points specified in
the Appendix.
”
16
12. We have heard learned counsel for the parties. Main
contention raised on behalf of State of Uttar Pradesh is that while
it was permissible for the Central Government to lay down
eligibility qualifications for appointment of a teacher for
elementary education by virtue of Section 23 of the RTE Act, the
NCTE could not lay down any guideline so as to affect the power
of a State to prescribe norms for selection of a teacher consistent
with the qualifications under Section 23 of the RTE Act.
13. On the other hand, the stand of the original writ petitioners
is that the subject of education falls under Entry 25 of List III of 7th
Schedule of the Constitution after the 42nd Amendment. Thus, by
virtue of Article 254 of the Constitution, the law made by the
Parliament prevails over any law made by the State. It was
submitted that The NCTE Act has been enacted by the Parliament
to achieve ‘planned and coordinated development of the teacher
education system’. The Council constituted under the Act is
empowered to issue guidelines under Sections 12 and 12A for
ensuring planned and coordinated development of teacher
education and also to lay down guidelines in respect of minimum
qualifications for a person to be employed as a teacher. Further,
17
vide Notification dated 31st March, 2010 under Section 23 of the
RTE Act, the Central Government has authorized the NCTE as the
‘academic authority’ to lay down minimum qualifications for a
person to be eligible for appointment as a teacher.
14. Learned counsel for the NCTE submitted that notification
dated 11th February, 2011 suggesting weightage to TET marks
was merely a guideline and was not intended to be binding on the
States. While TET was a mandatory requirement, weightage to
the marks in the TET was merely a suggestion. This stand has
also been taken by some of the learned counsel in connected
matters. Reliance was placed on the stand of the NCTE in its
affidavit dated 1st May, 2014 in CWP 346 of 2013 before the
Punjab and Haryana High Court as follows:
“That in view of the said recommendations of the
Committee, it is stated that the guidelines
contained in Clause 10 and 11 of NCTE guidelines
dated 11th February, 2011 are directory in nature.
Appropriate Government may in its own wisdom
decide as to the eligible candidates on the basis
of having qualified the Central Teachers Eligibility
Test. However, education being the subject
matter of concurrent list of the power to frame
appropriate legislation/regulations/rules works
with the appropriate legislature of the State
Government and as such State Government is
18
well within as rights to prescribe the qualification
of eligibility in the form that the candidates
wanting to apply for the said post must
necessarily qualify the Teachers Eligibility Test of
said State. There would be no legality in the
same and merely because a state government
had failed to conduct the State Teachers Eligibility
Test (STET) in a given year would not amount to
taking a decision not to hold the exams and to
hold the candidates having qualified Central
Teacher Eligibility Test as eligible.”
15. Reliance was also placed on clarification dated 2nd
September, 2016 by NCTE in reply to a question under the Right
to Information Act, 2005(at page no. 733 of the SLP paper book in
SLP(Civil)No. 1121 of 2017) as follows:
“1. CTET/TET is an examination to qualify to
become eligible for appointment as a teacher
from classes I to VIII.
2. There is no binding to State/Central
Government to select the candidate as a teacher
basis on TET marks. TET is just eligibility for the
appointment of teachers.”
16. There is no manner of doubt that the NCTE, acting as an
‘academic authority’ under Section 23 of the RTE Act, under the
Notification dated 31st March, 2010 issued by the Central
Government as well as under Sections 12 and 12A of the NCTE
19
Act, was competent to issue Notifications dated 23rd August, 2010
and 11th February, 2011. The State Government was under
obligation to act as per the said notifications and not to give
effect to any contrary rule. However, since NCTE itself has taken
the stand that notification dated 11th February, 2011 with regard
to the weightage to be given to the marks obtained in TET is not
mandatory which is also a possible interpretation, the view of the
High Court in quashing the 15th Amendment to the 1981 Rules has
to be interfered with. Accordingly, while we uphold the view that
qualifications prescribed by the NCTE are binding, requirement of
weightage to TET marks is not a mandatory requirement.
17. As a result of above, in normal course the State would have
been at liberty to proceed with the selection in terms of
advertisement dated 7th December, 2012 in accordance with the
amended rules by way of 15th amendment, in view of
developments which have taken place during pendency of these
appeals, the said advertisement cannot proceed and while
upholding the said advertisement, relief has to be moulded in the
light of developments that have taken place in the interregnum.
20
18. Vide interim order dated 25th March, 2014, this Court
directed the State of Uttar Pradesh to fill up the vacancies of
Assistant Teachers in terms of the impugned judgment.
Thereafter, on 17th December, 2014, the said order was modified
and the State was directed to appoint candidates whose names
were not involved in malpractices in the TET test and who had
obtained 70% marks (65% for SC, ST, OBC and physically
handicapped or any other category covered by the Government
policy for reservation). 54,464 posts have already been filled up in
compliance of the orders of this Court. The said appointments
were subject to result of these matters. It was also observed that
if anyone without TET qualification is appointed his services will
be terminated. Vide order dated 2nd November, 2015 it was noted
that against 72,825 posts which were advertised, 43,077
candidates had completed training and were working while
15,058 candidates were undergoing training. Around 14,690
posts were vacant. It was further observed that candidates who
had the required percentage of marks in terms of order dated 27th
July, 2015 were to file their applications and a Committee
21
constituted for the said purpose could verify such percentage and
if parity was found the same benefit could be extended.
19. We have been informed that 66,655 teachers have already
been appointed in pursuance of the interim orders of this Court.
Having regard to the entirety of circumstances, we are not
inclined to disturb the same. We make it clear that the State is at
liberty to fill up the remaining vacancies in accordance with law
after issuing a fresh advertisement.
20. The matters will stand disposed of in above terms.
…………………………………….J.
(Adarsh Kumar Goel)
…………………………………….J.
(Uday Umesh Lalit)
New Delhi;
25th July, 2017.
22
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