UPTET : TET is mandatory to Become Teacher even for SBTC 2008 Candidates

UPTET : TET is mandatory to Become Teacher even for SBTC 2008 Candidates

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Judgment reserved on 25.7.2013     Judgment delivered on 20.08.2013

1.    SPECIAL APPEAL NO.29 OF 2013
Ashok Kumar and others vs. State of UP and others
Connected with
2.    SPECIAL APPEAL NO.2155 OF 2012
Fagoo Ram and others vs. State of UP and others
3.    SPECIAL APPEAL NO.2160 OF 2012
Brijesh Kumar Gautam & ors vs. State of UP and others
4.    SPECIAL APPEAL NO.166 OF 2013
Shiv Prasad and others vs. State of UP and others
5.    SPECIAL APPEAL NO.187 OF 2013
Jitendra Kumar and others vs. State of UP and others
6.    SPECIAL APPEAL DEFECTIVE NO.1058 OF 2012
Pradeep Kumar and others vs. State of UP and others
7.    SPECIAL APPEAL DEFECTIVE NO.1059 OF 2012
Mahesh Prasad Saroj and another vs. State of UP and others
8.    SPECIAL APPEAL DEFECTIVE NO.128 OF 2013
Asharam and others vs. State of UP and others
9.    SPECIAL APPEAL DEFECTIVE NO.414 OF 2013
Keshav Prasad and others vs. State of UP and others
10.    SPECIAL APPEAL DEFECTIVE NO.566 OF 2013
Vijay Kumar and others vs. State of UP and others
11.    SPECIAL APPEAL DEFECTIVE NO.692 OF 2013
Bijay Singh and others vs. State of UP and others

Hon'ble Sunil Ambwani, J.
Hon'ble Surya Prakash Kesarwani, J.

1.    We have heard Shri Ashok Khare, Senior Counsel assisted by Shri Vishnu Shanker Gupta for the appellants. Shri Vishnu Pratap appears for the State respondents.
2.    The appellants in this batch of intra-Court Special Appeals seeking admission to Special B.T.C. Course 2008 are aggrieved with short order passed by learned Single Judge dated 4.7.2012 in Writ Petition No.25714 of 2012 and other writ petitions, by which he has, on an affidavit filed by the Director, S.C.E.R.T. informing the Court that the process of recruitment to Special B.T.C. Course 2008 shall be positively closed on or before 31.7.2012, issued an order directing all the Principals of DIETs, that the result of the counselling, which has been completed, shall be declared on or before 31.7.2012, and thereafter, neither any counselling shall be done nor any admission will be made to Special BTC Course, 2008.
3.    Shri Ashok Khare, learned counsel appearing for the appellants states that 3877 seats for Special BTC Course 2008, and 2531 seats for general selections to BTC Course 2008, are still lying vacant. All the petitioners-appellants are graduates with B.Ed qualification. They had applied in response to advertisements to fill up 10,084 seats in Special BTC Course 2008; 18301 seats for general selections in BTC Course 2008 and for 8878 seats as balance of the year 2007, totalling 37,263 seats. Out of these, 30855 candidates (15085 for Special BTC 2008 and 15770 for general selection 2008) were selected, of which results were declared for 17,262 seats in Special BTC Course 2008 and 12,995 for general selections in BTC 2008 seats, totalling 30257 seats. In this manner the vacancies on 6408 posts are still lying vacant. He submits that the directions issued by learned Single Judge challenged in these Special Appeals for closing admission process to Special BTC Course 2008, has not only deprived the petitioners of an opportunity of selection for appointment as teachers in Primary Schools in the State of UP, but will also result in wastage of 6408 seats.
4.    The recruitment for the post of teachers in Junior Basic Schools/Senior Basic Schools is made through direct recruitment at the level of Assistant Teacher of Junior Basic Schools, with appointment on higher post being made by way of promotion from amongst such Assistant Teachers of Junior Basic Schools. The recruitment of Assistant Teachers at entry level is governed by the provisions of U.P. Basic Education Teachers Service Rules, 1981, under which the appointment is made of the candidates possessing qualifications specified in the rules and which includes Basic Teacher's Certificate. The Basic Teacher's Certificate (BTC) is a two years training course, admission to which is made by an entrance examination conducted at the level of the State Government. After successful completion of two years' training, the candidates are entitled for appointment as Assistant Teachers. The admission to BTC Course is not made every year. The irregular admissions and shortage of the training Colleges resulted into shortage of teachers in primary schools in the State of UP. The number of candidates to be admitted to BTC Course in District Institutes of Education and Training (DIET) is limited to about 100 or 200 seats available in individual DIET every year, which cannot fulfill the requirement of the appointment on the vacancies which accumulated to more than one lakh posts.
5.    The State Government took a decision in the year 1998, for making selections for six months special training course referred to as Special BTC Course and on successful completion thereof by the candidates who possess other teacher's qualification like B.Ed, L.T. Training certification, Diploma in Physical Education and Bachelor of Physical Education. On successful completion of training such candidates were granted appointment as Assistant Teachers in Junior Basic Education run by the Basic Education Board.
6.    Despite admission to Special BTC Course in the years 1998, 2004 and 2007 a large number of vacant posts continued to exist in the State. In the year 2007 the State Government forwarded a proposal to National Council for Teachers Education (NCTE) for permission to hold Special BTC training course. The National Council for Teacher Education by order dated 20.9.2007 granted permission of training of additional 28,385 candidates for primary teachers apart from the permission already given with regard to 60,000 such additional candidates, thereby totalling 88,385 seats.
7.    In pursuance to the permission granted by the NCTE dated 29.9.2007 the State Government issued a Government Order dated 14.11.2008 notifying admission to BTC Course 2008 and Special BTC Course 2008 (special recruitment) for filling up 28,385 posts of Assistant Teachers. The advertisements were issued inviting applications from candidates possessing other teacher's training qualification like B.Ed, LT training certificate, Diploma in Physical Education and Bachelor of Physical Education for selections for admission to six months Special BTC course with ultimate objectives for grant of appointment as Assistant Teachers. No restriction was imposed with regard to the number of districts for which a candidate could apply so that each of the applicant had applied for consideration for such admission in several districts in the State.
8.    On the basis of applications received from time to time cut of aggregate of percentage was notified for admission to different batches of Special BTC Training Course 2008 to be conducted in several rounds comprising of three months theory classes in DIET and three months practical classes in the institute itself.
9.    It is stated that despite several rounds of such training a large number seats for Special BTC Course 2008 and General Selections of 2008 are still vacant in the State. Several vacancies, which were required to be filled up from amongst reserved category candidates belonging to science category, were converted to arts category on account of non-availability of candidates under science category.
10.    It is submitted that by the impugned orders passed without giving any reasons at all the process has been abruptly closed leaving these vacancies unfilled and thereby violating petitioners' rights, who were otherwise qualified, to be considered for selection for training and for appointment.
11.    A counter affidavit of Shri Ashok Kumar Chaurasia, Professor, State Institute of Science Education, Research and Training, Allahabad has been filed on behalf of State respondents stating that the process was initiated for appointment of Assistant Teachers in Basic Schools in the State of UP run by the UP Basic Education Board by issuing Government order dated 14.11.2008 for Special BTC Training 2008 (Special Selection) and Special B.T.C. Training-2008 including 10,084 posts of Special BTC Training 2008 (Special Selection) and 18301 posts for Special BTC Training 2008. Out of these 8878 seats of Special BTC Training 2007, could not be filled up as sufficient number of Scheduled Caste/Scheduled Tribe/Other Backward Classes candidates were not available. These seats were also included in the selections. The selection was to be made from various classes/categories of female/male and Arts/Science, providing for reservation for Scheduled Caste, Scheduled Tribe and Other Backward Castes. On account of non-availability of some categories, some of the seats remained vacant on which by a partial modification of the Government order dated 14.11.2008, a Government order dated 29.10.2009 and thereafter Government orders dated 4.3.2011 and 13.4.2011 were issued in respect of Special BTC Course 2008. When the selections were in process, a Writ Petition (PIL) No.19806 of 2011 (Ved Narain Payasi and others vs. State of UP and others) was filed in which an order was passed on the statement of Standing Counsel appearing for State Government that the result of Special BTC Course 2008 has been finalised and will be published in daily newspapers and on website. The communication will also be sent to the successful candidates by registered post. In view of that the Court directed the entire exercise to be completed within two months.
12.    It is further stated in the counter affidavit that in the matter of Shri Bhupendra Nath Tripathi the Supreme Court passed an order on 29.10.2010 directing the candidates, who have obtained B.P.Ed from other States and the directions issued by Full Bench on 13.8.2010 in Writ Petition No.3733 of 2009 (Jitendra Kumar Soni vs. State of UP and others) for making the candidates with B.Ed degree from Jammu and Kashmir eligible for BTC Training Course 2008, and on account of Government orders dated 4.10.2011 and the clarification issued on 21.10.2011 the selection process was in progress for such candidates and for adjusting the candidates of Scheduled Caste/Scheduled Tribe/female in Science category in SC/ST/ Female in Arts and Male in Arts category. For these reasons the selection process could not be completed within the time allowed by this Court within two months from 6.4.2011. The Writ Petition (PIL) No.19806 of 2011 (Ved Narain Payasi and others vs. State of UP and others) was disposed of on 6.4.2011. A Contempt Petition No.4257 of 2011 (Ved Narain Payasi and others vs. Dinesh Chandra Kanaujia, Director) was filed in which a counter affidavit has been filed. The contempt petition is still pending.
13.    It is further stated in the counter affidavit, that in the meantime in Writ Petition No.69672 of 2011 (Dinesh Kumar Yadav and others vs. State of UP and others) by an order dated 22.12.2011 the Court directed the selection process of Special BTC Course 2008 to be completed in another two months. In the meantime, the legislative assembly elections were announced and the Model Code of Conduct became operative from 24.12.2011, on which the selection process was stopped upto March, 2012. Thereafter reminders were sent to District Institute of Education and Training for complying with the orders of the High Court in Dinesh Kumar Yadav vs. State of UP (supra). Since the orders could not be complied with, directions were issued for personal appearance of the officers unless they comply with the order. Finally on 23.5.2012 directions were issued by the Court summoning the officers to show cause as to why the process has not been completed within the time granted by the High Court. On 3.7.2012 the Secretary, Basic Education Board, UP and Director, State Educational Research and Training Board personally appeared in contempt matter and filed an affidavit in which he informed the Courts that the recruitment to Special BTC Course 2008 shall be positively closed on or before 31.7.2012 and on which the Court passed an order on 4.7.2012, which has been challenged in this Special Appeal.
14.    On 24.1.2013 the Court passed an order in Special Appeals as follows:-

"We have heard the parties at length.

State may file a counter affidavit to the affidavit supporting the stay application in this appeal within two weeks positively. Apart from replying to as many paragraphs as may be possible within this short period of two weeks, the Director S.C.E.R.T. will also specify in the counter affidavit as to whether, if the impugned order dated 4.7.2012 had not been passed by the learned Single Judge and the Director had to taken his own independent decision for closing the counselling, what decision he would have taken and why.

As requested by both sides, list this case for further hearing in the week commencing 11thFebruary, 2013."

15. In response to the query the State of UP has given a reply that since the candidates applied in accordance with the Government Orders in more than one districts, the applications received for 20-30 times the number of seats. The select list issued after verifying the qualifications in each districts issued several times, still the seats remained vacant as the time scheduled was revised from time to time on account of the orders passed by the High Court and Supreme Court making the candidates, who had passed B.Ed examination from outside the State and from Jammu and Kashmir eligible in the selections. It is stated in the counter affidavit filed in these Special Appeals that so far as Special BTC Course 2007 is concerned, the seats could not be filled up despite issuing seven lists on which selection process was closed on 11.12.2008. Some of the candidates, who had applied in Special BTC Course 2007 challenged the closure of the proceedings. In Special Appeal No.1772 of 2009 (Pravesh Kumar and others vs. State of UP and others) this Court upheld the directions issued by the State Government on 11.12.2008 to close the selection process observing:- "It was the State Government to have decided the extent to which the merit was to be lowered in the selections and to stop the counselling. The number 7 may not a rational or any reason in it except the fact that seven rounds of counselling was more than sufficient chances, which could be given to the candidates in a selection. The process had to come to an end at some point of time, without compromising with merits. The State Government in its reply in response to the orders passed by this Court on 24.1.2013 has taken a stand that even if the order dated 4.7.2012 was not passed directing the selection process for Special BTC Course 2008 to be closed, considering the facts that despite several select lists being issued the candidates did not appear for selection and seats remained vacant, the Director SCERT, UP would have recommended the State Government to close the selection process for Special BTC Course 2008.
16.    Shri Ashok Khare, Senior Counsel appearing for the petitioners-appellants, who have been given leave to file these appeals, states that there is no rational behind a decision to close the selection process leaving 6408 seats vacant, depriving the petitioners-appellants and many other eligible persons from selection, when there are still thousand of vacancies lying vacant in the primary schools in the State of UP. He submits that apart from the rights of the primary school students under Article 21-A of Constitution of India; and the enactment of Right of Children to Free and Compulsory Education Act, 2009, the rights of petitioners have also been seriously affected by closing the process of selections.
17.    We do not find any arbitrariness or irrationality in the decision taken by the State respondents to close the proceedings of selection of Special BTC Course 2008 on the ground that despite several rounds of counselling and conversion of the seats reserved for SC/ST/OBC for Females in Science category to SC/ST/OBC Female and Male candidates in Arts category, the seats could not be filled up due to non-appearance of the candidates notified in respective lists. It is also not advisable for the State Government to wait indefinitely to fill up the posts in any one selection. In State of Haryana vs. Subhash Chander Marwaha 1997 AIR SC 2216 and State of UP and others v. Rajkumar Sharma and others (2006) 3 SCC 330 it was held that a writ of mandamus can be issued only to perform a legal duty, which the statute imposes upon the authorities. Since there is no legal duty on the State Government to fill up all the advertised vacancies, the petitioners do not have any right to these unfilled vacancies, and thus the action of the State Government in such case cannot be treated to be arbitrary or unreasonable.
18.    In the present case, apart from the reasons given for closing the selections we also find that in the meantime the Parliament has enacted Right of Children to Free and Compulsory Education Act, 2009, under which the National Council for Teachers Education has been notified and declared as the Competent Authority. In a notification issued by the State Government dated 23.8.2010 the Teacher's Eligibility Test (TET) has been prescribed as the qualification for Primary School Teachers and has been made compulsory for appointment for all candidates. In view of this notification dated 23.8.2010 issued by the Central Government, it is no longer permissible for the candidates, who have passed B.Ed examination or had completed any special course or bridge course to apply and be eligible for appointment as Assistant Teachers in Primary Schools run by the UP Basic Education Board unless they have passed TET examinations. The TET Examination 2011 was held and that the candidates, who have passed the examination, are being appointed in pursuance to the advertisement issued by the State Government.
19.    In Civil Misc. Writ Petition No. 12908 of 2013
(Shiv Kumar Sharma Vs. State of U.P. & others) and other connected writ petitions, a Full Bench of this Court considered the question, 'as to whether the Teachers' Eligibility Test is a test for qualification' and held as follows:

"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).

20.    In view of the above discussion, we do not find that the directions issued by learned Single Judge to put the selection process for Special BTC Course 2008 to close by 31.7.2012, require any interference in appeals. Learned Single Judge has in his brief order after considering the entire facts and circumstances relying upon the affidavit of the Director, SCERT, Allahabad has issued directions, which are neither arbitrary nor illegal. Every recruitment has to come to an end at some point of time. With the change in the scenario after enforcement of the Right of Children to Free and Compulsory Education Act, 2009, and the prescription of Teachers' Eligibility Test as qualification for applying for the posts of Assistant Teachers in Primary School, which has also been incorporated under the UP Basic Education Teachers Act, 1981, it is no longer possible for the Court to issue directions to the State Government to fill up all the seats of Special BTC Course 2008, and to continue to appoint the Assistant Teachers in Primary Schools on the basis of such qualifications indefinitely.
21.    All the Special Appeals are dismissed.
Dt. 20.08.2013
RKP/