UPTET : Allahabad Highcourt Judgement Case :- SPECIAL APPEAL No. - 2366 of 2011 PART 9

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 9

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"23. Qualifications for appointment and terms and conditions of service of teachers.-(1) ........................ 

(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 its 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 qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of five years." 

As noted above, possessing qualifications of teachers in paragraph 3 was permissible only up to 1.1.2012. The State Government have submitted a proposal to the Central Government by letter dated 26.7.2012 for relaxation of minimum qualifications for appointment of teachers under section (1) of Section 23 by allowing persons referred to in clause (1) (a) of paragraph 3 of the said notification. The Central Government after considering the request of the State Government issued a notification dated 10.9.2012 in exercise of power under section 23(2). It is useful to extract the aforesaid notification dated 10.9.2012 which is as follows: 

"MINISTRY OF HUMAN RESOURCE DEVELOPMENT 

(Department of School Education and Literacy) 

NOTIFICATION 

New Delhi, the 10th September, 2012 

S.O.2165(E).- WHEREAS the National Council for Teacher Education (hereinafter referred to as the Council) for Teacher Education (hereinafter referred to as the Council), in pursuance of sub-section (i) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009), (hereinafter referred to as the said Act), has, vide its notification number F.No.61/03/20/2010/NCTE/(N&S), dated the 23rd August, 2010, published in the Gazette of India, Extraordinary, Part III, Section 4, dated the 25th August, 2010, (hereinafter referred to as the said notification), as amended vide notification number 61-1/2011-NCTE(N&S), published in the Gazette of India Extraordinary, Part III, Section 4, dated the 2nd August, 2011, laid down the minimum qualification for a person to be eligible for appointment as a teacher for classes I to VIII in a school referred to in clause (n) of section 2 of the said Act. 

AND WHEREAS sub-clause (a) of clause (i) of paragraph 3 of the said notification as amended from time to time, provides that a person with graduation with atleast fifty per cent marks and Bachelor of Education (B.Ed.) qualification or with at least forty-five per cent marks and one year Bachelor in Education in accordance with the National Council for Teacher Education (NCTE) (Recognition Norms and Procedure) Regulations, referred to in the said Notification as amended from time to time, shall also be eligible for appointment to Class I to V up to 1st January, 2012 provided he/she undergoes, after appointment, a National Council for Teacher Education (NCTE) recognised six month Special Programme in Elementary Education. 

AND WHEREAS sub-section (2) of section 23 of the said Act provides that where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications laid down under sub-section (1) of Section 23 of the said Act 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; 

AND WHEREAS the State Government of Uttar Pradesh vide its letter dated the 26th of July, 2012 submitted a proposal to the Central Government for relaxation of the requirement of minimum qualifications for appointment of teachers laid down by the Council under sub-section (1) of section 23 of the said Act, by allowing persons referred to in sub-clause (a) of Clause (i) of paragraph 3 of the said notification, as amended from time to time, eligible for appointment as a teacher for classes I to V beyond the date of 1st January, 2012, subject to the fulfilment of conditions laid down in the said sub-clause. 

AND WHEREAS the Central Government on being satisfied with the proposal of the State Government of Uttar Pradesh that the teachers possessing minimum qualification as laid down under sub-section (i) of Section 23 of the said Act are not available in that State in sufficient numbers, and it deems necessary that the requirement of minimum qualifications for appointment as teachers in respect of State of Uttar Pradesh be relaxed under sub-section (2) of section 23 of the said Act; 

NOW, THEREFORE, in exercise of the powers conferred by sub-section (2) of section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009), the Central Government hereby relaxes in respect of the State of Uttar Pradesh, the minimum qualifications laid down by the National Council for Teacher Education under sub-section (1) of section 23 of the said Act in so far as they relate to classes I to V, and allows persons referred to in sub clause (a) of clause (1) of paragraph 3 of the said notification as amended from time to time, eligible for appointment as a teacher for classes I to V beyond the 1st January, 2012, subject to fulfilment of the conditions specified under the said sub clause. 

2. The relaxation granted under this notification shall be valid for a period upto the 31st March, 2014, subject to fulfilment of following conditions, namely:- 

(i)the State Government shall conduct the Teacher Eligibility Test as specified in the said notification as amended from time to time, in accordance with the Guidelines for conducting Teacher Eligibility Test, under the Right of Children to Free and Compulsory Education Act, 2009, issued by the Council vide its letter dated the 11th February, 2011 and those persons who pass the Teacher Eligibility Test be considered for appointment as a teacher in classes I to VIII; 

(ii)the State Government and other school managements shall amend the recruitment rules relating to appointment of teachers so as to provide for the minimum qualifications required for appointment of teachers laid down under the said notification as amended from time to time; 

(iii)the State Government shall in the matter of appointment of teacher give priority to those eligible candidates who possess the minimum qualifications specified in the said notification as amended from time to time and thereafter consider other candidates eligible with the qualifications referred to in sub-clause (a) of clause (i) of paragraph 3 thereof; 

(iv)advertisement for appointment of teachers shall be given wide publicity, including outside the State; 

(v) The State Government and other school managements shall ensure that teachers employed or engaged by them who possess the minimum qualifications referred to in sub clause (a) of clause (i) of paragraph 3 of the said notification as amended from time to time, under go, after appointment, a National Council for Teacher Education (NCTE) recognised six month Special Programme in Elementary Education; 

(vi)the relaxation specified in this notification shall be one time and no further relaxation under sub-section (2) of section 23 shall be granted to the State of Uttar Pradesh; and 

(vii)the State Government shall take steps to increase the institutional capacity for preparing persons with specified qualifications so s to ensure that only persons possessing qualifications laid down under the said notification are appointed as teachers for classes I to V after the 31st March, 2012. 

3. The persons referred to in sub-clause (a) of clause (i) of paragraph 3 of the said notification as amended from time to time, shall also be eligible for appearing in the Teacher Eligibility Test conducted by the State Government in respect of teacher appointments made in the State up to 31st March, 2014, in accordance with sub-paragraph (iii) of paragraph 5 of the Guidelines for conducting Teacher Eligibility Test under the Right of Children to Free and Compulsory Education Act, 2009 issued by the Council vide its letter dated the 11th February, 2011. 

[E No.1-17/2010-EE.4] 

VRINDA SARUP, Addl. Secy." 

The 4th paragraph of the aforesaid notifications clearly contemplates that State Government has submitted proposal for relaxation of the requirement of minimum qualifications for appointment of teachers laid down by the Council under sub-section (1) of section 23 of the said Act, by allowing persons referred to in sub-clause (a) of Clause (i) of paragraph 3 of the said notification, as amended from time to time, eligible for appointment as a teacher to teach classes I to V beyond the date of 1st January, 2012. The aforesaid notification thus, clearly contemplates relaxation for permitting the appointment of teachers referred to in paragraph 3 beyond 1.1.2012. The Central Government has granted the relaxation subject to conditions as mentioned in paragraph 2. The notification dated 10.9.2012 thus, also clearly re-enforces the view that the candidates possessing qualifications as referred to in paragraph 3 i.e. candidates having passed B.A. B.Sc. with 50% and B.Ed. are eligible for appointment as teacher for teaching class I to V beyond 1.1.2012 i.e. upto 31.3.2014. Thus, the eligibility of candidates in paragraph 3 has been continued by Central Government by allowing relaxation under sub-section (2) of Section 23. Thus, the submissions of the State that for appointment of teachers in basic schools a candidate should necessarily pass TET is misconceived. The relaxation having been granted by the Central Government under section 23(2) beyond the period 1.1.2012, still the candidates possessing qualifications as required in paragraph 3 of the notification dated 23.8.2010 can be appointed. 

The State having misconstrued the scope of clause 3 of notification dated 23.8.2010, by 12th Amendment Rules incorporated qualifications which require passing of TET by the candidates whereas the qualifications as mentioned in paragraph 3 have not been reflected in the Rules. When under 2009 Act and by virtue of notifications dated 23.8.2010 the relaxation granted by the Central Government vide notification dated 10.10.2012, the persons referred to in clause 3 of the notifications are still eligible for appointment, denying them right of consideration for appointment citing rule 8 of 1981 Rules as amended from time to time is misconceived and is contrary to the statutory schemes of 2009 Act. 1981 Rules cannot contain any rule contrary to qualifications as prescribed under section 23(1) and any such contrary prescription is unenforceable. We are thus of the view that persons having B.A. B.Sc. with 50% marks and B.Ed. are still eligible to be considered for appointment as teacher in class I to V in basic school. 

In the above context, it is relevant to refer to clause 2(iii) of the notifications dated 10.9.2012. The clarification which is quoted for ready reference is as follows: 

(viii)the State Government shall in the matter of appointment of teacher give priority in the said notification as amended from time to time and thereafter consider other candidates eligible with the qualifications referred to in sub-clause (a) of clause (i) of paragraph 3 thereof; 

The notification dated 10.9.2012 requires that State Government shall in the matter of appointment of teacher give priority to those eligible candidates who possess minimum qualifications specified in the said notification and thereafter consider every candidate eligible as per qualifications referred to under sub-clause (a) of clause (i) of paragraph 3. This requirement itself makes it clear that persons referred to in paragraph 3 are also eligible. However, a priority has to be given to person possessing minimum qualifications specified in the notification. The notification referred to is obviously notification dated 23.8.2010. Thus, priority has to be given to those candidates, who fulfil qualifications prescribed under paragraph 1 of the notification dated 23.8.2010 and there is no concept of priority amongst the candidates who possess qualifications under paragraph 3. 

Learned Counsel appearing for the State has also referred to a guidelines dated 8.11.2010 issued under section 35(1) issued by the Government of India. In paragraph 4 of the guidelines emphasis has been made i.e. "conditions of possessing TET will not be relaxed by the Central Government". The said guidelines have been issued for implementation of the provisions of section 23(2) which is clear from the subject of guidelines which as follows: 

"Subject: Guidelines under section 351 of the Right of Children to Free and Compulsory Education (RTE) Act, 2009 for implementation of the provisions of Section 23(2)-reg." 

Guidelines only mentions that conditions of possessing TET will not be relaxed by the Central Government thus, it require that the State Government should not submit any proposal for relaxation of TET which obviously referred to qualifications prescribed in paragraph 1 because it is only in paragraph 1 that requirement of passing TET is mentioned. The said guidelines cannot be read to mean that in paragraph 3 of the notification dated 23.8.2010 also requirement of passing TET is to be read in. Learned Additional Advocate General has submitted that the State has already initiated process for appointment of more than 72,000 trainee teachers and process has been initiated which according to corrigendum/amendment dated 31.12.2012 is to be completed by 31.3.2012. He submits that more than seven lacs applications have been received in response to the advertisement and the process is under way.

In view of the aforesaid discussions, we are of the view that the persons who are qualified under clause 3 of notification dated 23.8.2010 should also be eligible for consideration for appointment as assistant teacher in basic schools in the State of U.P. Whether the appointment is made as a trainee teacher or assistant teacher is of not much significance. The appointment on the post of teacher in whatever name or nomenclature it is referred to has to be made after considering all eligible persons as per notification dated 23.8.2010. We are of the view that State having not permitted applications from such candidates who are qualified under clause 3 without they having passed TET to participate in selection, it is required to issue corrigendum. Such candidate who possess qualifications prescribed in clause 3 under the notification dated 23.8.2010 be also permitted to participate in the selection. 

In the result all the Special appeals are disposed of with the following directions: 

(i)The appellants/other eligible candidates who have passed BA/BSc with 50% and are B.Ed being fully eligible for appointment as Assistant Teacher to teach Classes I to V as per Clause 3 of the notification dated 23rd August, 2010, as amended from time to time, are entitled for consideration for their appointment on vacant posts of Assistant Teachers in Classes I to V. The State authorities including the concerned District Basic Education Officers are directed to consider the claim of such persons while considering the appointment on the post of Assistant Teacher in institutions to teach Classes I to V. 

(ii)The State is directed to issue a corrigendum so that all eligible candidates as per clause 3 of the notification dated 23.8.2010 as amended i.e. candidates having 50% marks in B.A./B.Sc. with B.Ed. should also be permitted to participate in the ongoing process of appointment of trainee teachers. At least 15 days time be allowed to submit applications by abovementioned candidates. 

(iii)The prayer of the appellants possessing BTC/Special BTC qualifications obtained after 23.8.2010 to issue direction to appoint them giving benefit of paragraph 5 of the notification dated 23rd August, 2010 cannot be accepted. 

Parties shall bear their own costs. 

Date: 16.1.2013. 

LA/Rakesh 

Source : http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do?judgmentID=2309727