BIGGEST UPTET RELATED ALLAHABAD HIGH COURT TRIPLE BENCH DECISION
As Allahabd High court Triple Bench Decision is Very Large and Unable To Publish It on Blog at One Go.
Therefore I am Publishing Important Points -
Important Point -
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This Full Bench has been called upon to resolve the controversy that has arisen out of a reference made by a learned single Judge doubting the correctness of the judgment in the case of Prabhakar Singh and others Vs. State of U.P. and others, 2013 (1) ADJ 651, relating to the compulsion of passing the Teacher Eligibility Test as prescribed under the Notification dated 23.8.2010 as amended on 29.7.2011 for appointments on the post of an Assistant Teacher for an Elementary Basic School (classes I to V). Even though there are three questions framed by us, the issue which requires a resolution is the binding effect of the aforesaid Notification that has been issued by the National Council for Teacher Education while prescribing a minimum standard to be possessed by a candidate aspiring to become a Teacher of elementary education.
To address the issue involved, we had heard the matter and framed 3 questions as follows:-
"(a) What does the phrase "minimum qualifications" occurring in Section 23 (1) of the right of Children to Free and Compulsory Education Act, 2009 (the Act) mean - whether passing the 'Teacher's Eligibility Test', is a qualification for the purposes of Section 23 (1), and it insistence by the NCTE in the Notification dated 23.8.2010 is in consonance with the powers delegated to the NCTE under Section 23 (1) of the Act?
(b) Whether clause 3 (a) of the Notifications dated 23.8.2010 and 29.7.2011 issued by the NCTE under Section 23 (1) of the Act, permits persons coming under the ambit of that clause to not undergo the 'Teacher's Eligibility Test', before they are eligible for appointment as Assistant Teachers? What is the significance of the words "shall also be eligible for appointment for Class-I to V upto 1st January, 2012, provided he undergoes, after appointment an NCTE recognized six months special programme in elementary education"?
(c) Whether the opinion expressed by the Division Bench in Prabhakar Singh and others Vs. State of U.P. and others, 2013 (1) ADJ 651 (DB), is correct in law?"
3. Sri R.A. Akhtar for the National Council for Teacher Education has emphasized that the power of the Council is very much available and the argument that it did not have the authority to prescribe the Teacher Eligibility Test as a qualification is unfounded. Sri Singhal and Sri Akhtar, therefore, relied on the guidelines dated 11.2.2011 as well as the Notifications issued from time to time to urge that all the Notifications read together with the Notification dated 23.8.2010 would leave no room for doubt that the Teacher Eligibility Test is compulsory for all classes of Teachers, who are seeking appointment in Schools, imparting elementary education without exception.
At the national level a debate was going on and a Committee under the Chairmanship of Prof. B.G. Kher recommended the incorporation of Article 45 of the Constitution in the Chapter of Directive principle of State policy which read as under:-
"Article 45-- The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years."
Article 45 as amended now reads as under:-
"Article 45. Provision for early childhood care and education to children below the age of six years.--The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years."
And Article 21-A is quoted herein below:-
"21-A. Right to education.-- The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine."
Teacher eligibility test is an additional norm laid down by the Academic Authority which according to the decision of Preeti Srivastava's case serves the definition of qualification. The contention therefore raised by Sri Agrawal that the teacher eligibility test is not a qualification has to be rejected. It is not a part of something which is to be possessed at the minimum. It has to be possessed in addition to the educational and training qualification
To further understand as to why the teacher eligibility test is a qualification one can refer to the guidelines dated 11th February, 2011 where the background and rationale for conducting the said test has been referred. We may mention at the outset that the said guidelines had totally escaped the notice of the division bench and its ingredients while proceeding to treat the teacher eligibility test to be not necessary for the candidates falling under Clause 3 of the Notification dated 23.8.2010. The guidelines provide that persons to be recruited as teachers should possess the essential aptitude and ability to meet the challenges of teaching at the elementary level. The consequences were explained by the rationale that it would bring about national standards and bench mark of teacher quality in the recruitment process. It would further induce teacher education institutions to improve their performance standards and a positive signal to all stake holders that the Government lays special emphasis on teacher quality. This rationale therefore justifies the teacher eligibility test as an additional norm apart from the educational and training qualifications.
This is fortified by Clause 5 of the guidelines dated 11.2.2011 which says that a person who has acquired the academic and professional qualification under the notification dated 23.8.2010 shall be eligible for appearing in the teacher eligibility test. This Clause leaves no room for doubt that all classes of candidates possessing the academic and professional qualifications would be eligible to appear in the teacher eligibility test and therefore it is a norm which is compulsory for all classes of teachers including those who fall within Clause 3 of the notification dated 23.8.2010.
The next is the structure and content of the test which has five sections in relation to examination for Classes 1 to 5 with which we are presently concerned. These five sections are Child Development and Pedagogy, Language 1 - focussing on proficiency relating to medium of instruction, Language 2- an optional language, Mathematics and Environmental Studies. The test items for the last two subjects should be correlated with concepts of problem solving ability and pedagogical understanding of the subject.
At this stage the importance of Child Development and Pedagogy deserves to be emphasised in the backdrop of the social environment that requires a mention when the province is facing not only a shortage of numbers, but an acute shortage of duly qualified and educated teachers at the primary level.
Our court is fully aware of the huge problems that are being faced in this branch of elementary education with the influx of temporary methods of providing instruction through teachers like Shiksha Mitra and Preraks. In this background, the emphasis of quality teachers attains more importance.
The subject of Child Development and Pedagogy assumes importance and consequently a teacher eligibility test no longer remains a mere eligibility test but becomes the most essential qualification to be possessed for being appointed as a teacher
Many children are victims of apathy and wrongly motived parental treatment. Their emotional and skilful assessment, and proper treatment, has to be handled within the clinic of an elementary school where the sole physician is none else than a trained teacher. A candidate possessing a mere educational or a training qualification without any genuine attribute may not necessarily be a good teacher.
Guru Brahma Guru Vishnu Guru Devo Maheshwaraha Guru Saakshat Para Brahma Tasmai Sree Gurave Namaha"
It may be emphasised that there is no challenge raised to such appointments against rules, but the law is certain that appointment de-hors the rules cannot be said to be valid. After the enforcement of the notification dated 23.8.2010 every candidate aspiring to become a teacher of elementary education in any of the institutions defined under the 2009 Act has to be possessed of the qualifications prescribed therein. The intention therefore of the legislature is clear that no teacher without such a qualification can be allowed to continue as a teacher in the institution.
We wish to clarify that the binding effect of the notifications and the guidelines is such that the weightage which is contemplated under the guidelines dated 11th February, 2011 cannot be ignored. The minimum score that is required of a candidate is 60% to pass the teacher eligibility test. A concession of 5% has been made in favour of the reserved category candidates including the physically challenged and disabled persons.
This norm therefore cannot be diluted. Apart from this, the State Government has to take notice of the fact that weightage has to be given in the recruitment process as well. It is for the State Government to suitably adopt the said guidelines and we do not wish to add anything further at this stage as we are only concerned with the essentiality of the qualification of the teacher eligibility test to be possessed by any candidate aspiring to be appointed as a teacher.
We wish to make it clear that the law has to be followed in the manner in which it has been legislated. It cannot be diluted on account of the inaction of the State. In such circumstances all teachers whose appointment relate to the period after 23.8.2010 have to be possessed of TET.
Coming to the arguments advanced by Sri Ashok Khare, learned Senior Counsel, who contends that the entire judgement should be overruled on both counts, we may make it clear at the outset that the finding in the first part of the reported judgment contained in paragraph Nos. 34 to 53 thereof relate to the stand of all such candidates, who have acquired the academic and the training qualifications prior to 23.8.2010, to urge that they should be appointed in the same fashion as was being done earlier without any compulsion of passing the Teacher Eligibility Test. They are in essence seeking appointment by virtue of an interpretation of clause 5 of the Notification dated 23.8.2010 to contend that since the Advertisement for the training qualifications had already been issued earlier, and the same amounts to initiation of the recruitment process, and therefore, such candidates should be appointed without undergoing the test. A similar argument has been advanced by Sri Arvind Srivastava and Sri Alok Mishra on this issue.
We are unable to find any error in the reasoning contained in Paras 34 to 53 of the Division Bench in Prabhakar Singh's case on this count for the reasons given hereinabove and hereinafter and we, therefore, approve the judgment to the aforesaid extent.
Sri Khare has then proceeded to expand his argument in relation to the unsure status of the cut off date of the applicability of the Notifications. We are not impressed by this argument inasmuch as we have already concluded herein above that the power under Section 23 (1) of the 2009 Act, overrides the field on this aspect and once the qualifications have been fixed in exercise of such powers, the same cannot be avoided by the State Government by any delay of implementation of such qualifications. The State has no choice but to apply the Notification dated 23.8.2010 with immediate effect.
Sri Khare has then advanced his submissions on some issues more but we do not find it necessary to answer the said arguments as they do not come squarely within the reference which has to be answered by us. We are, therefore, confining ourselves basically to the questions referred and the correctness of the judgment in Prabhakar Singh's case in relation thereto.
We have heard Sri Arvind Srivastava for those candidates who are seeking impleadment and contend that they were candidates of special BTC course 2007 and 2008 entitled to be appointed as Teachers along with their counterparts, who have been offered appointment without having passed the Teacher Eligibility Test. The Intervener Application has been filed by Prabhakar Singh and another in Writ Petition No.12915 of 2013 filed by Prit Pal Singh, in which the present reference has been made.
The contention of these applicants is that they were already fighting the litigation pertaining to their qualification before the Supreme Court even though they were applicants pursuant to the Advertisements dated 17.7.2007 and 19.1.2008. The judgment of the Apex Court in favour of these candidates in the case of Bhupendra Nath Tripathi was delivered in October 2010 whereby they were also held to be eligible as they were having the training qualification which were acquired from the outside the state.
The candidates of the same batch, whose qualifications were not doubtful, had already been appointed and were also appointed after the Notification dated 23.8.2010. In the aforesaid circumstances, the interveners cannot be discriminated and they were also entitled for being appointed without having passed the Teacher Eligibility Test.
To justify their stand the first argument raised by Sri Srivastava is that such applicants, who had applied against the vacancies of 2007, would continue to be considered for appointment as Assistant Teacher under the Rules that were existing then. The qualifications have, therefore, to be seen on the date of advertisement that was then issued for the purpose of inviting candidates for training of special BTC course. They, therefore, insist that the advertisement that was made prior to 23.8.2010 for imparting the special BTC Training course would govern the process of appointment of such candidates including the petitioners as the vacancies were existing then.
The argument, therefore, appears to be that if the vacancy relates to the advertisement for training prior to 23.8.2010 then the said vacancy will have to be filled up under the old rules and the method of recruitment as was then existing and not by the qualifications now prescribed under the Notification dated 23.8.2010.
The next contention is that candidates who have not passed the Teacher Eligibility Test, have been appointed even after 23.8.2010. As already indicated by us, if the process had not begun by any advertisement as required under Rule 14, the petitioners cannot claim parity with such candidates. They will, therefore, have to undertake the Teacher Eligibility Test as, in fact, they have not entered the recruitment process or appointment as yet. The allegation that the State cannot adopt two yardsticks is not the issue inasmuch as the point to be resolved is as to whether the Teacher Eligibility Test is a necessary qualification or eligibility condition for the appointment of an Assistant Teacher in an elementary School after the Notification dated 23.8.2010 or not. If the State has proceeded to act contrary to rules, then the same cannot be a ground for claiming equality under Article 14 of the Constitution of India. The action of the State which is not in accordance with law or was an action under the transitory phase of the issuance of the rules and adoption of the Notification dated 23.8.2010 cannot enure any advantage to the interveners. The contention that rights had accrued in their favour prior to 23.8.2010, therefore, cannot be supported in law in the light of the observations made herein above.
The contention of Sri Srivastava that the candidates have a legitimate expectation also cannot be accepted as the legitimacy of an expectation has to be founded on the basis of some right. The letters of the Secretary of the Board, which have been relied upon by the learned counsel for the petitioners, are administrative communications which cannot over ride the effect of Rule 14. If a promise was made by the State that the appointment will be made as soon as the training is completed, the same would not mean that rule 14 has not to be complied with. The letter issued by the Basic Education Board or by the Secretary or the Director cannot be treated to be either an executive instructions or Government Order that may be enforced as a matter of law over and above Rule 14.
Sri Srivastava then proceeded to give another turn to the argument by contending that the Notification dated 23.8.2010 issued by the National Council for Teacher Education was unauthorised and did not have the force in law inasmuch as the Central Government issued the authorisation on 1.4.2010 whereby the National Council for Teacher Education was empowered to lay down the minimum qualification as the academic authority.
The National Council for Teacher Education had issued the norms of minimum qualification on 31.3.2010 which was prior to the authorisation under the Notification dated 1.4.2010. Sri Srivastava, therefore, submits that if the Notification for fixing the minimum qualification had arrived one day earlier to the authorisation under the Act itself, the same has no legal force. The argument at first flush appears to be attractive but on a perusal of Section 22 of the General Clauses Act, 1901, the said argument has to be rejected outright. The authorisation had come on 1.4.2010 but the process of authorising the National Council for Teacher Education had commenced and it was issued one day earlier i.e. on 31.3.2010. The same was, however, published on 5.4.2010 i.e. after the authorisation had been issued by the Central Government. The norms laying down minimum qualifications, therefore, would come into effect from 5.4.2010 and not from 31.3.2010. It stands saved under Section 22 of the General Clauses Act as referred to herein above. This aspect is also supported by a couple of judgments of the Apex Court cited by the learned Counsel for the Central Government and the State reference whereof has been noticed in connection with Section 23-A of the U.P. General Clauses Act in the Division Bench judgment, State of U.P. Vs. Mahesh Narain, 2008 (71) ALR 926.
The next contention raised that the minimum qualifications fixed in addition to Rule 8 of the 1981 Rules do not in any way take away the impact of the existing qualification under Rule 8 and, therefore, such candidates, who possess the qualification as prescribed under Rule 8, cannot be excluded. Needless to mention that the Rules have already been amended and the Teacher Eligibility Test also forms part of the amended Rules under the 1981 Rules relied upon by the learned counsel. Even prior to the amendment of Rule 8, the contention that there is no prohibition of considering the candidates without the Teacher Eligibility Test is a misconceived argument. The rules, which had not been amended, were obviously not in accordance with the norms prescribed by the Central Government under the 2009 Act. Thus, the State Government cannot afford to ignore the said Rule or make appointment of candidates, who were not possessed of such qualifications. The argument that the word "minimum" does not mean only, is a misconceived argument inasmuch as, minimum means the least that has to be possessed. It does not mean that other qualifications cannot be prescribed or if prescribed cannot be read in addition to minimum qualification. The argument, therefore, raised by Sri Srivastava also does not come to his aid and in our opinion the Teacher Eligibility Test has to be passed by a candidate before he seeks appointment of Assistant Teacher after the promulgation of the Notification dated 23.8.2010.
Another argument advanced is that the State Government framed Rules under Section 38 of the 2009 Act on 27.7.2011 which indicates that there was a requirement to frame Rules in view of the provisions contained under Section 23 of the Act or else they would have been automatically covered. This argument is also misconceived inasmuch as the definition of the word "Institution" in the 2009 Act has been lost sight of by the learned counsel which includes all the Institutions as are indicated under the 2009 Act.
Sri Srivastava then contends that the judgment in the case of Prabhakar Singh causes discrimination between the candidates who have the special BTC training course and those who are having only BA and B.Ed. qualifications by exempting the latter class from appearing in the Teacher Eligibility Test. We have already indicated above that this part of the judgment in Prabhakar Singh's case deserves to be overruled as no such exemption has been granted by the provisions under the Notification dated 23.8.2010 as amended later on. In the aforesaid circumstances, this argument also deserves to be rejected.
One of the crucial arguments on the anvil of Article 14 of the Constitution that has been advanced is that the judgment under reference creates two classes of Teachers and the State Government has also discriminated one category of candidates namely those who were entitled to be appointed even prior to that. This argument has been advanced on the strength of the admitted position that candidates without having passed the Teacher Eligibility Test appointed even after 23.8.2010 belong to the category of special BTC course of 2007 and 2008 and also compassionate appointees.
The response of the State Government is that some appointments have been cancelled but so far as those teachers who have already been appointed and have been working even though they have not passed the Teacher Eligibility Test, their chapter should be treated as closed. Sri C.B. Yadav, learned Addl. Advocate General, has categorically stated this on instructions from the State Government. Thus, there exist a certain class of Teachers, who have been appointed after 23.8.2010 and do not possess the Teacher Eligibility Test qualification. They have also been appointed under the old prevalent practice of not facing any fresh selection after advertisement under Rule 14 and have been appointed immediately after training. They were appointed against the vacancies which were far above than the available number of candidates and, therefore, their appointment was almost a foregone conclusion.
Since this issue has been advanced time and again and has been canvassed by both the sides, we may put on record that the issue of law as referred has been categorically laid down by us and the appointments have to be made only in accordance with the aforesaid position of law. We do not wish to add anything further leaving the question raised above open to be debated and decided in appropriate cases as this is not a point of reference.
The questions that have been therefore framed by us are answered as follows:-
1. The teacher eligibility test is an essential qualification that has to be possessed by every candidate who seeks appointment as a teacher of elementary education in Classes 1 to 5 as per the notification dated 23.8.2010 which notification is within the powers of the NCTE under Section 23(1) of the 2009 Act.
2. Clause 3(a) of the notification dated 23.8.2010 is an integral part of the notification and cannot be read in isolation so as to exempt such candidates who are described in the said clause to be possessed of qualifications from the teacher eligibility test.
3. We approve of the judgment of the division bench in Prabhakar Singh's case to the extent of laying down the interpretation of the commencement of recruitment process under Clause 5 of the notification dated 23.8.2010 but we disapprove and overrule the ratio of the said decision in relation to grant of exemption and relaxation from teacher eligibility test to the candidates referred to in Clause 3 (a) of the notification dated 23.8.2010, and consequently, hold that the teacher eligibility test is compulsory for all candidates referred to in Clause 1 and Clause 3 (a).
Let the judgement be accordingly placed before the respective benches for appropriate orders.
Order Date: 31.05.2013
Irshad
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Most Important Points Which Arises From This Decision is -
We wish to clarify that the binding effect of the notifications and the guidelines is such that the weightage which is contemplated under the guidelines dated 11th February, 2011 cannot be ignored. The minimum score that is required of a candidate is 60% to pass the teacher eligibility test. A concession of 5% has been made in favour of the reserved category candidates including the physically challenged and disabled persons.
This norm therefore cannot be diluted. Apart from this, the State Government has to take notice of the fact that weightage has to be given in the recruitment process as well. It is for the State Government to suitably adopt the said guidelines and we do not wish to add anything further at this stage as we are only concerned with the essentiality of the qualification of the teacher eligibility test to be possessed by any candidate aspiring to be appointed as a teacher.
We wish to make it clear that the law has to be followed in the manner in which it has been legislated. It cannot be diluted on account of the inaction of the State. In such circumstances all teachers whose appointment relate to the period after 23.8.2010 have to be possessed of TET.
The questions that have been therefore framed by us are answered as follows:-
1. The teacher eligibility test is an essential qualification that has to be possessed by every candidate who seeks appointment as a teacher of elementary education in Classes 1 to 5 as per the notification dated 23.8.2010 which notification is within the powers of the NCTE under Section 23(1) of the 2009 Act.
2. Clause 3(a) of the notification dated 23.8.2010 is an integral part of the notification and cannot be read in isolation so as to exempt such candidates who are described in the said clause to be possessed of qualifications from the teacher eligibility test.
3. We approve of the judgment of the division bench in Prabhakar Singh's case to the extent of laying down the interpretation of the commencement of recruitment process under Clause 5 of the notification dated 23.8.2010 but we disapprove and overrule the ratio of the said decision in relation to grant of exemption and relaxation from teacher eligibility test to the candidates referred to in Clause 3 (a) of the notification dated 23.8.2010, and consequently, hold that the teacher eligibility test is compulsory for all candidates referred to in Clause 1 and Clause 3 (a).
Let the judgement be accordingly placed before the respective benches for appropriate orders.
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