Friday, January 18, 2013

UPTET : Allahabad Highcourt Judgement Case :- SPECIAL APPEAL No. - 2366 of 2011 PART-3

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 


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

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

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

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

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

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

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

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

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