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 

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 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"