UPTET SARKARI NAUKRI News - NCTE , TET Rules in Allahabad Highcourt and Compassionate Appointment Teacher -
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved
Case :- WRIT - A No. - 33828 of 2012
Petitioner :- Hari Shanker And Others
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.
Connected with
1. Case :- WRIT - A No. - 32707 of 2012
Petitioner :- Smt. Sompi Gupta
Respondent :- State Of U.P. & Others
Petitioner Counsel :- R.D. Tiwari,M.D. Singh "Shekhar"
Respondent Counsel :- C.S.C.,Mohan Dhariya
2. Case :- WRIT - A No. - 33825 of 2012
Petitioner :- Neetesh Dwivedi And Others
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.,K.Shahi
3. Case :- WRIT - A No. - 33827 of 2012
Petitioner :- Badri Narain Sharma And Others
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.,Yatindra
4. Case :- WRIT - A No. - 33829 of 2012
Petitioner :- Mohd. Asif Alvi And Others
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.,Ram Prakash Shukla
5. Case :- WRIT - A No. - 33830 of 2012
Petitioner :- Praveen Singh Chahar And Others
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.,Ajeet Dube
6. Case :- WRIT - A No. - 33831 of 2012
Petitioner :- Smt. Anju
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.,Y.S.Bohra
7. Case :- WRIT - A No. - 33832 of 2012
Petitioner :- Rajesh Kumar
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.
8. Case :- WRIT - A No. - 33834 of 2012
Petitioner :- Rama Kant Sharma
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.,Durga Prasad Singh
9. Case :- WRIT - A No. - 33847 of 2012
Petitioner :- Mahesh Kumar And Others
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.,Satish Chandra Yadava
10. Case :- WRIT - A No. - 33848 of 2012
Petitioner :- Nagendra Singh
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Yogish Kumar Saxena
Respondent Counsel :- C.S.C.
11. Case :- WRIT - A No. - 34042 of 2012
Petitioner :- Trilok Chandra Gaur
Respondent :- State Of U.P. & Others
Petitioner Counsel :- D.K. Singh
Respondent Counsel :- C.S.C.,Y.S. Bohra
12. Case :- WRIT - A No. - 34217 of 2012
Petitioner :- Vijay Shanker Sharma & Others
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.
13. Case :- WRIT - A No. - 34222 of 2012
Petitioner :- Jeetendra Kumar Yadav
Respondent :- State Of U.P.& Others
Petitioner Counsel :- Achal Singh Vats,Rajendra Prasad
Respondent Counsel :- C.S.C.,Mrig Raj Singh
14. Case :- WRIT - A No. - 34551 of 2012
Petitioner :- Mohd. Rehan
Respondent :- State Of U.P. & Others
Petitioner Counsel :- J.S.P. Singh,Ravish Kumar Singh
Respondent Counsel :- C.S.C.
15. Case :- WRIT - A No. - 34731 of 2012
Petitioner :- Archana Chaubey
Respondent :- State Of U.P. & Others
Petitioner Counsel :- R.S.Mishra,Arun Kumar
Respondent Counsel :- C.S.C.,V.K. Bajpai
16. Case :- WRIT - A No. - 34885 of 2012
Petitioner :- Gaurav Anand
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Achal Singh Vats,Rajendra Prasad
Respondent Counsel :- C.S.C.,Shyam Krishna Gupta
17. Case :- WRIT - A No. - 35385 of 2012
Petitioner :- Md. Abais Khan And Others
Respondent :- State Of U.P. And Others
Petitioner Counsel :- J.S.P. Singh,Brajesh Kumar Singh
Respondent Counsel :- C.S.C.,Pankaj Kumar Singh
18. Case :- WRIT - A No. - 35408 of 2012
Petitioner :- Abhishek Nand Sinha And Others
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Achal Singh Vats,Rajendra PrasadA.F.R.
Reserved
Case :- WRIT - A No. - 33828 of 2012
Petitioner :- Hari Shanker And Others
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.
Connected with
1. Case :- WRIT - A No. - 32707 of 2012
Petitioner :- Smt. Sompi Gupta
Respondent :- State Of U.P. & Others
Petitioner Counsel :- R.D. Tiwari,M.D. Singh "Shekhar"
Respondent Counsel :- C.S.C.,Mohan Dhariya
2. Case :- WRIT - A No. - 33825 of 2012
Petitioner :- Neetesh Dwivedi And Others
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.,K.Shahi
3. Case :- WRIT - A No. - 33827 of 2012
Petitioner :- Badri Narain Sharma And Others
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.,Yatindra
4. Case :- WRIT - A No. - 33829 of 2012
Petitioner :- Mohd. Asif Alvi And Others
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.,Ram Prakash Shukla
5. Case :- WRIT - A No. - 33830 of 2012
Petitioner :- Praveen Singh Chahar And Others
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.,Ajeet Dube
6. Case :- WRIT - A No. - 33831 of 2012
Petitioner :- Smt. Anju
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.,Y.S.Bohra
7. Case :- WRIT - A No. - 33832 of 2012
Petitioner :- Rajesh Kumar
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.
8. Case :- WRIT - A No. - 33834 of 2012
Petitioner :- Rama Kant Sharma
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.,Durga Prasad Singh
9. Case :- WRIT - A No. - 33847 of 2012
Petitioner :- Mahesh Kumar And Others
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.,Satish Chandra Yadava
10. Case :- WRIT - A No. - 33848 of 2012
Petitioner :- Nagendra Singh
Respondent :- State Of U.P.Thru.It'S Secy. And Others
Petitioner Counsel :- Yogish Kumar Saxena
Respondent Counsel :- C.S.C.
11. Case :- WRIT - A No. - 34042 of 2012
Petitioner :- Trilok Chandra Gaur
Respondent :- State Of U.P. & Others
Petitioner Counsel :- D.K. Singh
Respondent Counsel :- C.S.C.,Y.S. Bohra
12. Case :- WRIT - A No. - 34217 of 2012
Petitioner :- Vijay Shanker Sharma & Others
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Siddharth Khare,Ashok Khare
Respondent Counsel :- C.S.C.
13. Case :- WRIT - A No. - 34222 of 2012
Petitioner :- Jeetendra Kumar Yadav
Respondent :- State Of U.P.& Others
Petitioner Counsel :- Achal Singh Vats,Rajendra Prasad
Respondent Counsel :- C.S.C.,Mrig Raj Singh
14. Case :- WRIT - A No. - 34551 of 2012
Petitioner :- Mohd. Rehan
Respondent :- State Of U.P. & Others
Petitioner Counsel :- J.S.P. Singh,Ravish Kumar Singh
Respondent Counsel :- C.S.C.
15. Case :- WRIT - A No. - 34731 of 2012
Petitioner :- Archana Chaubey
Respondent :- State Of U.P. & Others
Petitioner Counsel :- R.S.Mishra,Arun Kumar
Respondent Counsel :- C.S.C.,V.K. Bajpai
16. Case :- WRIT - A No. - 34885 of 2012
Petitioner :- Gaurav Anand
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Achal Singh Vats,Rajendra Prasad
Respondent Counsel :- C.S.C.,Shyam Krishna Gupta
17. Case :- WRIT - A No. - 35385 of 2012
Petitioner :- Md. Abais Khan And Others
Respondent :- State Of U.P. And Others
Petitioner Counsel :- J.S.P. Singh,Brajesh Kumar Singh
Respondent Counsel :- C.S.C.,Pankaj Kumar Singh
18. Case :- WRIT - A No. - 35408 of 2012
Petitioner :- Abhishek Nand Sinha And Others
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Achal Singh Vats,Rajendra Prasad
Respondent Counsel :- C.S.C.,Mrigraj Singh
19. Case :- WRIT - A No. - 35500 of 2012
Petitioner :- Gyanendra Kumar Srivastava
Respondent :- State Of U.P. And Others
Petitioner Counsel :- N.C. Gupta
Respondent Counsel :- C.S.C.,Nisheeth Yadav
20. Case :- WRIT - A No. - 35501 of 2012
Petitioner :- Pankaj Kumar
Respondent :- State Of U.P. And Others
Petitioner Counsel :- N.C. Gupta
Respondent Counsel :- C.S.C.,Nisheeth Yadav
21. Case :- WRIT - A No. - 35502 of 2012
Petitioner :- Pramod Kumar Singh Yadav
Respondent :- State Of U.P. And Others
Petitioner Counsel :- N.C. Gupta
Respondent Counsel :- C.S.C.,Nisheeth Yadav
21. Case :- WRIT - A No. - 35503 of 2012
Petitioner :- Rakesh Kumar Jaiswal
Respondent :- State Of U.P. And Others
Petitioner Counsel :- N.C. Gupta
Respondent Counsel :- C.S.C.,Nisheeth Yadav
23. Case :- WRIT - A No. - 35504 of 2012
Petitioner :- Azeem Uddin
Respondent :- State Of U.P. And Others
Petitioner Counsel :- N.C. Gupta
Respondent Counsel :- C.S.C.,Nisheeth Yadav
Hon'ble V.K. Shukla,J.
In
this bunch of writ petitions, the petitioners have rushed to this Court
complaining therein that each one of the petitioners had been appointed
as untrained assistant teacher on compassionate basis in basic schools
run and managed by the U.P. Basic Shiksha Parishad. Each one of the
petitioners had been appointed as assistant teacher on compassionate
basis under the orders passed by the respective District Basic
Educations Officers, with clear cut stipulation that the said engagement
was being made for a fixed pay of Rs.7300/- per month, and after the
appointment in question was made in consonance with the terms and
conditions of the Government Order dated 4th September, 2000, each one
of the petitioners was required to acquire B.T.C. training
qualification, and regular appointment was be treated only after the
incumbent successfully completed the B.T.C. Course. Appointment as
untrained teacher had been offered, and had been accepted. Some of the
petitioners have been sent for B.T.C. training course also. The services
of each one of the petitioners have been disengaged pursuant to
circular letter dated 12.06.2012 issued by the Secretary, Basic
Education Board, U.P. Allahabad on the premises that untrained teacher
cannot be appointed, after enforcement of the U.P. Right of Children to
Free and Compulsory Education Rules, 2011.
Since pure common question
of law is involved in all these writ petitions, they are being decided
by a common judgment and writ petition No.33828 of 2012 is being treated
as leading petition. In this writ petition also, the petitioners have
been accorded appointment as untrained assistant teacher with indication
that they would acquire B.T.C. certificate in consonance with the
Government Order dated 04.09.2000 and they would be offered regular
appointment only after completing successfully B.T.C. course. However,
if they fail in the aforementioned examination, then except for offering
appointment on class IV post, there would be no other option.
Petitioners of the aforesaid writ petition were sent for training at the
District Institute of Education and Training, Budaun. Petitioners have
come up with specific case that Secretary, Basic Education Board; U.P.
Allahabad has issued circular on 12.06.2012 directing cancellation of
compassionate appointment by mentioning that with effect from 27th July,
2011, the Rules known as the U.P. Right of Children to Free and
Compulsory Education Rules, 2011 has come into force, and as per the
same, without passing Teacher Eligibility Test (T.E.T.) no one can be
offered appointment and accordingly, all those incumbents, who have been
offered appointment in breach of the aforesaid Rules, their
appointments have been directed to be cancelled. Pursuant to the
aforementioned circular issued by the Secretary, Basic Education Board,
respective District Basic Education Officers have proceeded to pass
orders canceling the appointment of the petitioners. At this juncture,
petitioners have approached this Court.
On the matter being taken up,
Sri Niraj Updhyaya, learned standing counsel as well as Sri A.K. Yadav,
Advocate representing the Basic Education Board, contended that since
in this bunch of writ petitions pure legal question is involved, pure
legal submissions would be advanced and the requisite pleadings are
there in writ petition, as such they do not propose to file any counter
affidavit. Similar stand has been taken by other respective counsel
appearing for the respondents.
Sri Ashok Khare and Sri M.D. Singh
Shekhar, Senior Advocates, submitted with vehemence that grant of
compassionate appointment to the petitioners was an exception to normal
rule of appointment and in the present case, each one of the petitioners
had been validly appointed as untrained assistant teacher in consonance
with the Government Order, which held the field providing for
compassionate appointment. In view of this, the appointment so made in
no way was to be affected on the strength of Board's circular dated
12.06.2012, and further as field of offering compassionate appointment
remains intact, the same is beyond the scope of the Right of Children to
Free and Compulsory Education Act, 2009 (called "the Act, 2009", for
short), as such passing of order of cancellation of petitioners'
appointment, that too without providing opportunity of hearing, is
unjustifiable and uncalled for. Argument to the similar effect has been
advanced by other counsel representing the petitioners.
Countering
the said submissions, Sri Niraj Updhyaya, learned standing counsel as
well as Sri A.K. Yadav, Advocate representing the Basic Education Board,
on the other hand, contended that once 2009 Act, which is Central Act,
has been enforced, then in view of Section 23 (2) thereof, which opens
with non-obstante clause, any incumbent without having passed the T.E.T.
cannot be appointed as assistant teacher, and as far as relaxation in
eligibility criteria is concerned, same is the prerogative of the
Central Government, and till date no such relaxation has been granted.
The scheme of the things provided for would go to show that only those
selections have been left out, qua which selection process had already
started and such appointment may be made in accordance with N.C.T.E.
(Determination of Minimum Qualifications For Recruitment of Teachers in
School) Regulations, 2001 as amended from time to time as per circular
dated 29.07.2011 and sub-para (b) of para 5 provides that qualification
prescribed shall apply to all teachers except for the teacher of
Physical Education and further regarding Art Education, Craft Education,
Home Science, Work Education etc., the same eligibility norms shall
continue till such time N.C.T.E. Lays down minimum qualification, and in
reference to any fresh appointment, the incumbent has to have T.E.T. to
his/her credit, and as far as petitioners are concerned, as their
engagement as untrained assistant teacher had been done in breach of the
aforesaid Act/Rules, as such all the writ petitions deserve to be
dismissed.
In order to appreciate the respective arguments so
advanced relevant statutes are being looked into. There are three
statutes relevant in this matter. One is "Uttar Pradesh Basic Education
Act, 1972" (hereinafter referred to as "Act 1972") and the Rules framed
thereunder, Second is "National Council For Teacher Education Act, 1993"
(hereinafter referred to "Act 1993") and third is "Right of Children to
Free and Compulsory Education Act, 2009" (hereinafter referred to as
"Act 2009").
Prior to the enactment of Act 1972, primary education in
the State was in quite disorganized manner. There were two types of
Primary Schools running in the entire State. One owned and managed by
local bodies and rests were private institutions. In the rural areas,
primary schools of first category were being managed by Zila Parishads
and in urban areas they were being run by Municipal Boards and
Mahapalikas etc. The funds to these schools were the responsibility of
concerned local bodies. Privately managed Primary Schools were also
having two types of categories, one which were solely managed by private
bodies from their own resources and rest were those which were getting
some kind of financial grant/assistance from State Government through
Education Department or some other Departments like Harijan and Social
Welfare etc.
To bring uniformity in Primary schools run by Local
Bodies, considering day to day deteriorating conditions of such schools,
a public demand through their representatives was raised requiring
State to take immediate steps for improving primary education in the
State and hence with an objective of reorganization, reformation and
expanding elementary education, State Government came forward to take
over control of such schools, as were being run by Local Bodies into its
own hands. It enacted U.P. Basic Education Ordinance 1972 giving effect
to its provisions w.e.f. Educational Session 1972-73. The said
ordinance was substituted by Act 1972. It provided for establishment of
U.P. Board of Basic Education (in short the 'Board') and by virtue of
Section 9, all the employees of Primary Schools maintained by local
bodies stood transferred and became employee of the Board. Section 19
confers power upon the State Government to frame rules for the purpose
of carrying out Act 1972 in general and in particular the recruitment
and conditions of service of the persons appointed to the post of
officers, teachers and employees under Section 6 and 9 and also in
respect to such staff teaching and non teaching of other basic schools
recognized by the Board. The provisions of Act 1972 was given overriding
effect over otherwise provisions in U.P. Panchayat Raj Act, 1947, U.P.
Municipalities Act, 1916 and U.P. Municipal Corporation Act, 1952 by
inserting Section 13A w.e.f. 21st June, 1979. All the basic schools in
the State of U.P., now, if recognized by the Board, have to conform to
the provisions of Act 1972 and the rules framed thereunder.
In
respect to teachers of Primary Schools maintained by the Board, Rules
1981 have been framed known as U.P. Basic Education (Teachers) Service
Rules, 1981, published in U.P. Gazette (Extra Ordinary) on 03.01.1981.
The application of these rules is provided in Rule 3, as under:
"Extent of application.- These rules shall apply to :
(i) All teachers of local bodies transferred to the Board under Section 9 of the Act; and
(ii) all teachers employed for the Basic and Nursery Schools established by the Board."
Rule
4 deals with the strength of the service. Rule 5deals with the source
of recruitment. Rule 6 deals with the age. Rule 8 deals with the
academic qualifications and mentions that essential qualification of the
candidates for appointment to a post referred to in clause (5) of rule 5
would be as shown below against each. Rule 8 is being extracted below:
"8.
Academic Qualifications:- 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 Qualifications
(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,
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 qualifications 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:
Post
Experience
(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 five years' experience as permanent Head Master or Head Mistress
of Junior Basic School or permanent and 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 as 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 post referred to in clause (a) and
sub-clause (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
centers 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."
Rule 10 of the aforesaid Rules
deals with the authority of relaxation for ex-servicemen and certain
other categories, which is inclusive of compassionate appointment also,
and the same reads as below:
"10. Relaxation for ex-servicemen and
certain categories.- Relaxation, if any, from the maximum age limit,
educational qualifications or/and any procedural requirements of
recruitment in favour of the ex-servicemen, disabled military personnel,
dependents of military personnel dying in action, dependents of Board's
servants dying in harness and sportsmen, in accordance with the general
rules and orders of the Government in this behalf in force at the time
of recruitment."
Rule 14 deals with determination of vacancies
and preparation of list. Rule 15 deals with notification of vacancies
and preparation of list of eligible candidates for certain posts/ Rule
16 deals with constitution of selection committee. Rule 17 deals with
procedure for direct recruitment to a post for teaching a language. Rule
17A deals with procedure for direct recruitment to a post for teaching
subjects other than language. Rule 18 deals with deals with procedure
for recruitment by promotion. Rule 19 deals with appointment.
In
respect of planned and coordinated development for teachers education,
the provisions of 1993 Act has been enforced. This is a Central Act
enacted by Parliament and after receiving assent of the President on
29.12.1993 was published in the Gazette of India, (Extra.) Part II,
Section 1, dated 30.12.1993. Section 1(3) provides that Act 1993 shall
come into force on such date as the Central Government may appoint by
notification in initial gazette. Pursuant thereto the Central Government
by notification dated 1.07.1995 appointed the same day i.e. 01.7.1995
for enforcement of Act 1993.
The Act 1993 was enacted with an
objective of achieving planned and coordinated development for teacher
education system throughout the country, the regulation and properly
maintenance of norms and standards in teacher education system and for
matters connected therewith. The Act 1993 contemplates establishment of a
council called as "National Council For Teacher Education" (hereinafter
referred as "NCTE") and its functions are enumerated in detail in
Section 12 of Act 1993. It clearly talks of planned and co-ordinated
development of teacher education, and determination and maintenance of
standards for teacher education. It is in this regard various subjects
and functions of NCTE have been enumerated in Section 12 from Clauses
(a) to (n).
The Act 1993 contemplates recognition and permission of
NCTE for running courses or training in teacher education. Section 17
provides, if course or training in teacher education has been imparted
or obtained in violation of the provisions of the Act, such course or
training shall not be treated a valid qualification for the purpose of
employment under Central Act, State Government, University, any
School/College or other educational body aided by Central or the State
Government. The restriction imposed by Section 17(4) is only to the
extent that a training or course in teacher education which does not
conform to the various provisions of Act 1993 shall not be a valid
qualification for employment as stated above, and nothing more and
nothing less. The entire Act 1993 does not talk of the manner in which
appointments of teachers shall be made, the eligibility to be laid down
for appointment of teachers in Primary Schools etc. except
qualification. It is confined to the standard and quality of teachers'
education. NCTE can lay down minimum qualification which may be
prescribed for appointment of a teacher but it does not control the
mode, manner and other relevant provisions regarding recruitment and
appointment of such teachers. In State of U.P. and Others Vs. Bhupendra
Nath Tripathi and Ors. 2010 (5) ESC 630, the Apex Court has clarified
this situation that NCTE can lay down minimum qualification for
appointment of teacher by competent appointing authority or the
authority competent to frame rules and regulations may lay down any
qualification over and above the minimum qualification prescribed by
N.C.T.E.
Article 41 in Part IV (Directive Principles of State Policy)
provides that the State shall, within the limits of its economic
capacity and development, make effective provision for securing right to
work, to education etc. Similarly Article 45 provides that State shall
endeavour to provide, within a period of ten years from the commencement
of Constitution, free and compulsory education for all children until
they complete the age of fourteen years. Said provisions have come up
before Apex Court Court in Mohini Jain Vs. State of Karnataka, AIR 1992
SC 1858 and Unni Krishnan J.P. Vs. State of A.P., AIR 1993 SC 2178 and
the cases followed thereafter observing Primary Education to children
from age of 6 to 14 years as a constitutional right, efforts were made
by Governments, Central and State both, to expand primary education by
establishing primary schools at Village Panchayat level in a major way
and this really gave opportunity to open number of new schools and
correspondingly increase in number of teachers requiring to man these
institution. Parliament also recognized above right by inserting Article
21A in the Constitution i.e. 'Right to Education', by Constitution
(86th Amendment) Act, 2002, and, simultaneously inserted Clause (k) in
Article 51A vide Section 4 of Constitution (86th Amendment) Act, 2002.
The Parliament also in furtherance of the above constitutional
provisions, come forward by enacting Act 2009 published in Gazette of
India on 27.8.2009. By virtue of Section 1(3) of Act 2009, it has been
given effect from 01.4.2010.
One of the major change it has brought,
besides other, is that no Primary School other than a school
established, owned or controlled by the appropriate Government or local
body after commencement of 2009 Act shall be established or function
without obtaining a certificate of recognition from such authority, as
may be prescribed. For the purpose of seeking recognition, the school
has to conform the norms and standard specified in Section 19 of Act
2009 read with the schedule appended thereto. The Act 2009, vide Section
23(1), also provides that any person possessing such minimum
qualification, as laid down by an academic authority authorized by the
Central Government, by notification, shall be eligible for appointment
as a teacher.
Section 23 (2) of the Right of Children to Free and
Compulsory Education Act, 2009 further proceeds to mention that 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. A proviso has also been added to the aforesaid sub-section
(2) of Section 23 mentioning 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. For the sake of convenience the provisions of
sub-sections (1) and (2) of Section 23 are being excerpted 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.
In exercise of
powers conferred by Section 38 of 2009 Act, Rules have been framed and
the same have been published in the gazette dated 09.04.2010. Part VI of
the said Rules deals with the term "teacher". Rule 17 deals with
minimum qualification, rule 18 deals with relaxation of minimum
qualification, rule 19 deals with acquiring minimum qualifications.
Rules 17, 18 and 19 of the aforesaid Rules are being quoted below:
"17.
Minimum Qualifications.- (1) The Central Government shall, within one
month of the appointed date, notify an academic authority for laying
down the minimum qualifications for a person to be eligible for
appointment as a teacher.
(2)The academic authority notified under
sub-rule (1) shall within three months of such notification, lay down
the minimum qualifications for a person to be eligible for appointment
as a teacher in an elementary school.
(3)The minimum qualifications
laid down by the academic authority referred in in sub-rule (1) shall be
applicable for every school referred to in clause (n) of Section 2.
18.
Relaxation of minimum qualifications.- (1) The State Government and
Union Territory shall, within six months from commencement of the Act,
estimate the teacher requirements as per the norms in the Schedule of
all schools referred to in clause (n) of Section 2
(2) Where as State
Government or Union Territory does not have adequate institutions
offering courses or training in teacher education, or persons possessing
minimum qualifications as notified in sub-rule (2) of rule 17 are not
available in sufficient numbers in relation to the requirement of
teachers estimated under sub-rule (1) the State Government or the Union
Territory shall request, within one year of the commencement of the Act,
the Central Government for relaxation of the prescribed minimum
qualifications.
(3) On receipt of the request referred to in sub rule
(2), the Central Government shall examine the request of the State
Government or the Union Territory and may, by notification relax the
prescribed minimum qualifications.
(4) The notification referred to
in sub rule (3) shall specify the nature of relaxation and the time
period, not exceeding thee years, but not beyo9nd five years from the
commencement of the Act, within which the teachers appointed under the
relaxed conditions acquire the minimum qualifications specified by the
academic authority notified under sub-section (1) of Section 23.
(5)
After six months from the commencement of the Act, no appointment of
teacher for any school can be made in respect o any person not
possessing the minimum qualifications notified in sub-rule (2) of Rule
17, without the notification of relaxation referred to in sub-rule (3).
(6)
a person appointed as a teacher within six months of the commencement
of the Act, must possess as least the academic qualifications nor lower
than higther secondary school certificate or equivalent.
19.
Acquiring minimum qualifications. - (1) The State Government and Union
Territory shall provide adequate teacher education facilities to ensure
that all teachers in schools referred to in sub-clause (I), and schools
owned and managed by the Central Government or the State Government or
Union Territory or local authority under sub-clause (iii) of clause (n)
of Section 2, who doe not possess the minimum qualifications laid down
under sub-rule (2) of rule 17 at the time of commencement of the Act, to
acquire such minimum qualifications within a period of five years from
the commencement of the Act.
(2) For a teacher, or a school referred
to in sub-clause (ii) and (iv) of clause (n) of Section 2 and of a
school referred to in sub clause (iii) of clause (n) of Section 2 not
owned and managed by the Central Government, State Government or Union
Territory or local authority, who doe not possess the minimum
qualifications laid down under sub-rule (2) of rule 17 at the time of
commencement of the Act, the management of such school shall enable such
teacher to acquire such minimum qualifications within a period of five
years from the date of commencement of the Act."
In exercise of
powers conferred by sub-section (1) of Section 23 of 2009 Act, the
Central Government has authorized the National Council for Teachers
Education (NCTE) as Academic Authority to lay down minimum
qualifications for a person to be eligible for appointment as teacher.
In exercise of the said authority, the N.C.T.E. has proceeded to lay
down minimum qualifications for a person to be eligible for appointment
as teacher. Said Notification has been published on 23.08.2000, and
thereafter fresh notification has been issued with modifications on
29.07.2011. Relevant extract of the same is extracted below:
"NATIONAL COUNCIL FOR TEACHER EDUCATION
NOTIFICATION
New Delhi, the 29th July, 2011
F.No.61-1/2011/NCTE/N&S).-In
exercise of the powers conferred by sub-section (1) of the Section 23
of Right of Children to Free and Compulsory Education Act, 2009 (35 of
2009) and in pursuance of the Notification No.S.O. 750(E) dated 31st
March, 2010 issued by the Department of School Education and Literacy,
Ministry of Human Resource Development, Government of India, the
National Council for Teacher Education (NCTE) hereby makes the following
amendments to the Notification No.215 dated 25th August, 2010 published
in the Gazette of India, Extraordinary, Part-III, Section-4, vide
F.No.61-1/2011-NCTE (N&S), dated the 23rd August, 2010, laying down
the minimum qualifications for a person to be eligible for appointment
as a teacher (hereby referred to as the Principal Notification), namely
:-
(I) For sub-para (i) of para 1 of the Principal Notification, the following shall be substituted, namely:-
1. Minimum Qualifications:-
(i) Classes I-V
(a)
Senior Secondary (or its equivalent) with at least 50% marks and 2-year
Diploma in Elementary Education (by whatever name known)
OR
Senior
Secondary (or its equivalent) with at least 45% marks and 2-year
Diploma in Elementary Education (by whatever name known), in accordance
with the NCTE (Recognition Norms and Procedure), Regulations, 2002.
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor of Elementary Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Education (Special Education)
OR
Graduation and two year Diploma in Elementary Education (by whatever name known)
AND
(b)
pass in the Teacher Eligibility Test (TET), to be conducted by the
appropriate Government in accordance with the Guidelines 16
framed by the NCTE for the pourpose.
(II) For sub-para (ii) of para 1 of the Principal Notification, the following shall be substituted, namely :-
1 (ii) Classes VI - VIII
(a) Graduation and 2-year Diploma in Elementary Education (by whatever name known)
OR
Graduation with at 50% marks and 1-year Bachelor ion Education (B.Ed.)
OR
Graduation
with at least 45% marks and 1-year Bachelor in Education (B.Ed.), in
accordance with the NCTE (Recognition Norms and Procedure) Regulations
issued from time to time in this regard.
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor in Elementary Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4-year B.A./B.Sc.Ed. or B.A. Ed./B.Sc.Ed.
OR
Graduation with at least 50% marks and 1-year B.Ed. (Special Education)
AND
(b) Pass in Teacher Eligibility Test (TET), to be conducted by the 17
appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose.
(III) For para 3 of the Principal Notification the following shall be substituted, namely:-
(i)
Training to be undergone:-A person - (a) with Graduation with at least
50% marks and B.Ed. qualification or with at least 45% marks and 1-year
Bachelor in Education (B.Ed.), in accordance with the NCTE (Recognition
Norms and Procedure) Regulations issued from time to time in this regard
shall also be eligible for appointment to Class I to V up to 1st
January, 2012, provided he/she undergoes, after appointment, an NCTE
recognized 6-month Special Programme in Elementary Education;
(b)
with D.Ed. (Special Education) or B.Ed. (Special Education)
qualification shall undergo, after appointment an NCTE recognized
6-month Special Programme in Elementary Education.
(ii) Reservation Policy :
Relaxation
up to 5% in the qualifying marks shall be allowed to the candidates
belonging to reserved categories, such as ST/ST/OBC/PH.
(IV) For para 5 of the Principal Notification, the following shall be substituted, namely:-
5.(a)
Teacher appointed after the date of this notification in certain
cases:-Where an appropriate Government or local authority or a shool has
issued an advertisement to initiate the process of appointment of
teachers prior to the date of this Notification, such appointments may
be made in accordance with the NCTE (Determination of Minimum
Qualifications for Recruitment of Teachers in Schools) Regulations, 2001
(as amended from time to time).
(b)The minimum qualification
norms referred to in this Notification apply to teachers of Languages,
Social Studies, Mathematics, Science, etc. In respect of teachers for
Physical Education, the minimum qualification norms for Physical
Education teachers referred to in NCTE Regulation dated 3rd November,
2001 (as amended from time to time) shall be applicable. For teachers of
Art Education, Craft Education, Home Science, Work Education, etc. the
existing eligibility norms prescribed by the State Governments and other
school managements shall be applicable till such time the NCTE lays
down the minimum qualifications in respect of such teachers."
A
perusal of the aforesaid notification would go to show that minimum
qualification has been provided for a person to be eligible for
appointment as teacher and in addition to it, it has also been provided
that the incumbent has to pass Teacher Eligibility Test (T.E.T.) to be
conducted by the appropriate Government in accordance with the
guidelines framed by the N.C.T.E. for the purpose and paragraph 5 (a)
and 5 (b) of said circular has carved out exception to the applicability
of said Circular. In the State of U. P. Rules have been framed known as
U.P. Right of Children to Free and Compulsory Education Rules, 2011,
and therein part VI thereof deals with ''teacher'. Rule 15 deals with
minimum qualification of teachers, rule 16 deals with relaxation of
minimum qualification, rule 17 deals with acquiring of minimum
qualifications. Said Rules have been enforced with effect from 27th
July, 2011. The aforesaid Rules 15, 16 and 17 of the aforesaid Rules are
being quoted below:
"15. Minimum qualification of teachers
(Section 23 (1).- The minimum educational qualifications for teachers
laid down by an authority authorized by the Central Government, by
notification, shall be applicable for every school referred to in clause
(n) of Section 2.
16.Relaxation of minimum qualification (Section 23
(2).- (1) The State Government shall estimate the teacher requirement
as per the norms in the Schedule for all schools referred to in clause
(n) of Section 2 within the State.
(2) If teachers possessing
prescribed minimum qualifications are not available as estimated under
sub-rule (1), then the State Government shall request the Central
Government by 31st March, for relaxation of the prescribed minimum
qualification.
(3) The State Government shall take necessary action
after the notification issued by the Central Government, for relaxation
in the minimum qualification on the request under sub-rule (2).
(4)
The relaxation from minimum qualifications shall be for maximum period
of five years from the commencement of the Act, i.e. till 31st March,
2015, within such period the teachers appointed under relaxed condition
shall acquire the minimum educational qualifications prescribed under
rule 15.
(5) No appointment of teacher for any school can be made in
respect of any person not possessing the minimum qualifications
prescribed under rule 15 without the notification referred to in
sub-rule (3).
17. Acquiring of minimum qualification (proviso to
Section 23 (2).- The State Government shall made a request to the
academic authority notified by the Central Government for enhancement of
capacity of teacher education and for providing required facilities for
distant mode teacher training to ensure that all teachers in schools
established, owned or controlled by the State Government or a local
authority or specified schools, who do not possess the minimum
qualifications laid down under Rule 15 at the time of commencement of
the Act, acquire such minimum qualifications within a period of five
years from the commencement of the Act. The State Government shall after
obtaining the approval as per requirement provide for training of all
such teachers.
(2) The management of aided or unaided schools shall
enable such teachers, who do possess the minimum qualifications laid
down under Rule 15 at the time of commencement of the Act, to acquire
the same within a period of five years from the commencement of the
Act."
Thereafter, in the State of U.P. amendment has been
introduced in the U.P. Basic Education (Teachers) Service Rules, 1981 on
09.11.2011, and Rule 8 thereof has been amended known as U.P. Basic
Education (Teachers) Service (Twelfth Amendment) Rules, 2011 . A chart
containing existing rule as well as amended rule is being extracted
below:
Column -I Existing Rule
Column-II Rule as hereby substituted
"8.
Academic Qualifications:- 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:
"8. Academic Qualifications:- 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 Qualifications
Post
Academic Qualifications
(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
Mistress of Nursery School
Bachelor's
Degree from a University established by law in India or a degree
recognized by the Government as equivalent thereto together with the
Certificate of teaching (Nursery) from recognized training institution
of Uttar Pradesh or any other training course recognized by the
Government as equivalent thereto and have passed teacher eligibility
test conducted by the Government of Uttar Pradesh.
(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,
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.
(ii) Assistant Master and Assistant Mistress of Junior Basic School
Bachelor's
degree from a University established by law in India or a degree
recognized by the Government as equivalent thereto together with any
other training qualification consisting of a Basic Teacher's Certificate
(BTC), two years' BTC (Urdu) Vishist BTC and have passed teacher
eligibility test conducted by the Government of Uttar Pradesh.
(2)
The essential qualifications 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:
(2) The essential qualifications of
candidates for appointment to a post referred to in sub-clause (iii) and
(iv) of clause (b) 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
(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.
(ii) Training qualification
consisting of a Basic Teacher's Certificate, Certificate of Teaching or
any other training course recognized by the Government as equivalent
thereto and have passed teacher eligibility test conducted by the
Government of Uttar Pradesh.
(iii) Head Master or Head Mistress for Senior Basic School
At
least five years' experience as permanent Head Master or Head Mistress
of Junior Basic School or permanent and 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 as serial numbers (ii) or (iii) the
field of eligibility may be extended by the Board by giving relaxation
in the period of experience.
(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 and 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 post referred to in clause (a) and
sub-clause (iii) and (iv) of clause (b) of Rule 5 for teaching Urdu
Language shall be as follows:
(4) The essential qualifications of
candidates for appointment to the post referred to in clause (a) and
sub-clause (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.
(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 centers 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.
(ii) Basic Teacher's Certificate from any of the
training centers 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 or Basic Teacher's
Certificate (BTC) (Urdu) and have passed teacher eligibility test
conducted by the Government of Uttar Pradesh.
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:
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.
(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 qualifications of two years B.T.C. Urdu special training course.
(ii)
Training qualification of two years B.T.C. Urdu special training course
and have passed teacher eligibility test conducted by Government of
Uttar Pradesh
In respect of grant of compassionate
appointment under 1981 Rules, there is no specific provision. Rule 10 of
the 1981 Rules talks of relaxation and the State Government in its turn
has issued Government Order on 04.09.2000 dealing with the grant of
compassionate appointment. Relevant extract of the said Government Order
is being quoted below:
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ml ij fopkj fd;k tk;sxkA
e`rd vkfJr ifjokj dh dfBu ifjfLFkfr;ksa dks
n`f"Vxr j[krs gq, ;fn dksbZ vH;FkhZ fyfid lEoxZ ds in dh fjDr ds lkis{;
lsok;kstu esa lEHkkfor foyEc dks n`f"Vxr j[krs gq, ;fn rRdky lsok;kstu
dh vko';drk vuqHko djrk gks rks fu;qfDr izkf/kdkjh ds fy, ,sls
vH;fFkZ;ksa ds laca/k esa prqFkZ Js.kh esa fjDr ;k vf/kla[;k inksa ds
lkis{; e`rd vkfJr ds iqujhf{kr vkosnu i= izLrqr djus ij lsok;kstu djus
dk vf/kdkjh gksxkA ;gka ;g Li"V fd;k tkrk gS fd ,d ckj e`rd vkfJr ds :i
esa iznRr lsok;kstu dh lqfo/kk ij iquZfopkj dk dksbZ volj ugha jgsxkA
¼6½
,sls e`rd vkfJr ftudh U;wure 'kSf{kd ;ksX;rk twfu;j gkbZ Ldwy gS] dks
csfld f'k{kk ifj"kn ds tuin Lrjh; dk;kZy; esa fjDr in vFkok ifj"knh;
fo|ky;ksa esa prqFkZ Js.kh ds fjDr ;k vf/kla[; in ij lsok;kstu dh
lqfo/kk iznku dh tk;sxhA tuin Lrjh; dk;kZy; ds laca/k esa vf/kla[; in ds
fo:) e`rd vkfJr lsok;kstu vuqeU; ugha gksxkA
¼7½ vf/kla[; in Hkfo";
esa fjDr gksus okys inksa ds lkis{; le; le; ij lek;ksftr fd;s tk;saxsA
fu;qDr izkf/kdkjh tuin dh bdkbZ ekurs gq, fjDr@vf/kla[; inksa ds fo:)
e`rd vkfJrksa dks lsok;ksftr djsaxsA tuin ds dk;kZy;ksa esa fdlh Hkh
vf/kla[; in ds fo:) fu;qfDr;ka ugha dh tk;sxhA vf/kla[; in ds in/kkjksa
}kjk dh x;h lsok dh x.kuk osru fu/kkZj.k vkSj lsokfuo`Rr ykHkksa ds fy,
dh tk;sxhA
¼8½ e`rd vkfJr }kjk lacaf/kr deZpkjh ] ds e`R;q ds fnukad
ls ikap o"kZ ds Hkhrj lsok;kstuds fy, vkosnu izLrqr fd;k tk ldrk gS
ijUrq tgka jkT; ljdkj dks ;g lek/kku gks tk;s fd lsok;kstu ds fy, vkosnu
djus ds fy, fu;e le; lhek ls fdlh fof'k"V ekeys esa vuqfpr dfBukbZ
gksrh gS ogka og vis{kkvksa dks] ftUgsa og ekeys esa U;k;laxr vkSj
lkE;iw.kZ jhfr ls dk;Zokgh djus ds fyf, vko';d le>s] vfHk;qDr ;k
f'kfFky dj ldrh gSA fu;eksa esa bl vk'k; dh vfHk;qfDr@f'kfFkyhdj.k ds
laca/k esa izLrko lacaf/kr fu;qfDr izkf/kdkjh }kjk f'k{kk funs'kd ¼cs0½
ds ek/;e ls 'kklu dks izsf"kr fd;s tk;saxsA
¼9½ mRrj izns'k lsokdky
esa e`r ljdkjh lsodksa ds vkfJrksa dh HkrhZ ls lacaf/kr le; le; ij
la'kksf/kr fu;ekoyh dh O;oLFkkvsa ds v/khu mRrj izns'k csfld f'k{kk
ifj"kn ds deZpkfj;ksa ds e`rd vkfJr dk rkRi;Z e`rd f'k{k.k@f'k{k.ksRrj
deZpkjhds iq= vfookfgr vFkok fo/kok iq=h] iRuh vFkok ifr ls gksxkA
¼10½ e`rd vkfJr ds :i esa lsok;kstu ds fy, U;wure vk;q lhek tSlk fd lacaf/kr lsok lEoxZ ds lsok fu;eksa esa fofgr gS] gksxhA
4&
Jh jkT;iky mRrj izns'k csfld f'fk{kk vf/kfu;e] 1972 ¼mRrj izns'k
vf/kfu;e la[;k&34] lu 1972½ dh /kkjk&13 dh mi/kkjk ¼1½ ds varxZr
;g vkns'k nsrs gSa fd mi;qZDr fu.kZ; ds vuqlkj dk;Zokgh lqfuf'pr dh
tk;A
5& ;g vkns'k fnukad 08-01-1999 ls izHkkoh ekuk tk;sxkA
6&
;g vkns'k] foRr foHkkx ds v'kkldh; la[;k&vkbZ0,Q0,0&2&1490
@nl@2000] fnukad 29-08-2000 esa izkIr mudh lgefr ls fuxZr fd;s tk jgs
gSaA
Hkonh;
¼,u0 jfo'kadj½
lfpoA"
On the parameters of
the provisions quoted and discussed above, the case in hand is being
looked into. Each one of the petitioners, claims to have been appointed
in consonance with the Government Order dated 04.09.2000. In the said
Government Order a specific provision has been provided therein that all
those incumbents who fulfill the requisite educational qualification,
but do not have training qualification, they can move application for
grant of compassionate appointment and the said incumbent would be
offered appointment and shall be sent for training of B.T.C. course in
the respective District Institutes of Education and Training, and after
they successfully complete the training, they would be offered
appointment on regular basis. However, in case an incumbent fails to
pass the aforesaid examination, his candidature would automatically
stand cancelled and he would be offered appointment on class IV post and
his claim may also be considered for appointment against class III post
as per the exigency.
The moot question before this Court is that
when the provisions of the Right of Children to Free and Compulsory
Education Act, 2009 have been enforced and necessary eligibility
criteria has been fixed for being appointed as a teacher in the
institutions defined under Section 2 (n) of the said Act, then as to
whether appointment of an untrained person as teacher is feasible or
not? by invoking the provisions of relaxation in the matter of
compassionate appointment.
The Right of Children to Free and
Compulsory Education Act, 2009 has been enforced with effect from 27th
August 2009 in the belief that the value of equality, social justice,
democracy and creation of just a humane society can be achieved only
through the elementary education to all. The provisions of the Right of
Children to Free and Compulsory Education Act, 2009 also aims at
including the children from disadvantaged group and weaker sections to
get education, in consonance with the provisions of Article 21A of the
Constitution. Apart from dealing with the right of children to free and
compulsory education and making of special provision in the said
direction, the Parliament has taken care of the fact that the teachers
who are there to impart education, they should have also certain
qualification for being appointed, and in view of this clear cut mandate
has been made under Sub-section (1) of Section 23 of the said Act, that
person possessing such minimum qualification as laid down by the
academic authority authorized by the Central Government by notification,
shall be eligible for being appointed as teacher. Sub-section (2) of
Section 23 of 2009 Act gives liberty to the State Government to collect
data of the adequacy of the institutions offering courses of training
education, and in case teachers possessing minimum qualifications are
not available in sufficient number, requesting Central Government to
relax the minimum qualification required for appointment as a teacher,
for such period not exceeding five years, as may be specified in the
notification. A proviso has also been added providing 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. Apex Court in the case of
State of U.P. vs. Bhupendra Nath Tripathi, 2010 (3) SCC 238, apart from
holding that State can fix higher qualification, has taken the view that
proper training of teacher is integral aspect in effectuation of right
of education. Right conferred under Article 21A of the Constitution
would remain illusory in the absence of State taking adequate steps to
have required number of schools manned by efficient and qualified
teachers. Precise mention has been made that before teachers are allowed
to teach the children, they are required to receive appropriate and
adequate training from duly recognized training institute.
The
authority to fix minimum qualification has been out sourced by the
Central Government and the NCTE has been declared as authorized academic
authority to lay down minimum qualification for a person to be eligible
for being appointed as teacher. The N.C.T.E. in its turn has proceeded
to notify the educational qualification on 05.04.2010 as is required by
Section 23 (2) of the 2009 Act and different sets of minimum
qualifications have been provided for teachers for class I to V and
class VI to class VIII with requirement to pass T.E.T. to be conducted
by the appropriate Government in accordance with the guidelines framed
for the purpose. The T.E.T. as such has to be conducted by the State
Government. For the purpose of implementation of 2009 Act Rules have
also been framed known as U.P. Right of Children to Free and Compulsory
Education Rules, 2011 and the said Rules have been enforced with effect
from 27th July, 2011. Said Rules have been framed in supercession of all
existing rules and orders on the subject, and Rule 15 is clear that
minimum educational qualification for teachers laid down by an authority
authorized by the Central Government shall be applicable for all
schools referred to in clause (n) of Section 2. The State Government in
its turn on 07.09.2011 proceeded to authorize the Madhyamik Shiksha
Parishad to hold the T.E.T., and accordingly guidelines had also been
issued to be complied with for passing T.E.T. (Teacher Eligibility Test)
Under
the U.P. Basic Education Act 1972 and the Rules 1981. The qualification
required to be possessed by a teacher for appointment in a Primary
School is provided in Rule 8 of Rules 1981. This rule has undergone
amendments from time to time broadly. Initially it provides for a
qualification up to High School and training qualification like Basic
Teachers Certificate, Junior Teacher Certificate, Certificate of
Teaching etc. Later on amendments were made which basically increase
educational qualification of High School to Intermediate and then to
Graduation but so far as training qualification is concerned, the same
continue to be as such. For the first time, an amendment was made in
2004 by adding "Special Basic Teachers Certificate Course" as one of the
training qualification under Rule 8(1). Subsequently another amendment
came to be made by notification dated 25.11.2006 in Rule 8(1). In the
U.P. Basic Education (Teachers) Services Rules, 1981 also amendment has
been sought to be introduced on 09.11.2011 known as U.P. Basic Education
(Teachers) Services (Twelfth Amendment) Rules, 2011, and by means of
this amendment for a person to be appointed as teacher T.E.T. is a must.
Under
the U.P. Basic Education (Teachers) Service Rules, 1981, as amended
till date, there is no specific provision of compassionate appointment,
however, Rule 10 thereof talks of certain relaxations from the maximum
age limit, educational qualification or/and any procedural requirements
of recruitment in favour of the ex-servicemen, disabled military
personnel, dependents of military personnel dying in action, dependents
of Board's servants dying in harness and sportsmen, in accordance with
the general rules and orders of the Government in this behalf in force
at the time of recruitment. Thus, Rule 10 talks of relaxation, but the
same has to be in accordance with the general rules and orders of the
Government in this behalf in force at the time of recruitment.
Petitioners submit that Government Order dated 04.09.2000 is there, and
accordingly, rightful action has been taken by offering appointment as
untrained teacher.
In the present case factual situation which has so
emerged, is that under 2009 Act, it has already been provided under
Section 23 (1) for that only such persons shall be eligible for
appointment as teacher who possess such minimum qualifications as is
laid down by the academic authority authorized by the Central Government
by notification, and the academic authority to lay down minimum
qualification for appointment as teacher was the N.C.T.E. and the
N.C.T.E. in its turn has clearly proceeded to mention that before being
appointed as teacher apart from possessing minimum educational
qualification an incumbent has to pass T.E.T. and the State Government
was asked to conduct such test and the State Government in its turn had
authorized the Madhyamik Shiksha Parishad to hold such test. The minimum
qualification prescribed in notification dated 23.8.2010 are in two
parts, one for Junior Primary School namely Classes I to V and another
is for Senior Primary School i.e. Class VI to VIII. Besides educational
qualifications, for the first time, it also introduced eligibility
qualification of teacher i.e. Eligibility Test i.e. passing of Teachers
Eligibility Test (in short 'T.E.T.') conducted by concerned Government
in accordance with the guidelines laid down by NCTE. NCTE issued a
notification on 29.7.2011 in purported exercise of powers under Section
23 of 2009 Act. The aforesaid notification has amended notification
dated 23.8.2010. Sub-para (i) and (ii) of Para 1; para 3 and para 5 have
been substituted in entirety. Para 5 of notification dated 29.7.2011 is
a kind of saving clause and provides that if an advertisement
initiating process of appointment of teachers has already been issued
before 29.7.2011, such appointments may be made in accordance with NCTE
(Determination of Minimum Qualifications for Recruitment of Teachers in
Schools) Regulations, 2001 (as amended from time to time).
Sub para
(b) of para 5 provides that minimum qualification prescribed by
notification dated 29.7.2011 shall apply to all teachers except the
teacher for Physical Education, for which NCTE Regulation dated
03.11.2001, as amended from time to time, shall continue to apply.
Further regarding teachers of Art Education, Craft Education, Home
Science, Work Education, etc. the existing eligibility norms prescribed
by the State Government and other school managements shall be applicable
till such time the NCTE lays down the minimum qualification in respect
of such teachers. The above discussion makes it beyond doubt that the
above notifications issued by N.C.T.E. lays down minimum qualification,
which would make a person eligible for appointment as a teacher in
Primary Schools but the manner in which recruitment for appointment on
the post of teacher in Primary School shall be made, and, their terms
and conditions of service, for the same, aforesaid notification does not
provide anything at all and hence in this regard Rules 1981 shall hold
the field and would continue to apply. U.P. Right of Children to Free
and Compulsory Education Rules, 2011 is also there with effect from
27.07.2011. It clearly provides educational qualification for teacher to
be appointed in the institutions defined in clause (n) of Section 2,
and same is in supersession of all other Rules on the subject. Under
2009 Act and the Rules framed thereunder, minimum qualifications after
enforcement of the Act can be relaxed by the Central Government on the
recommendation of the State Government. The State Government ceases to
have any authority in the matter of relaxation of educational
qualification. Thus, once 2009 Act has come into force and the academic
agency authorized by it had already fixed the minimum educational
qualification, and U.P. Right of Children to Free and Compulsory
Education Rules, 2011 has been enforced, then the same are the general
rules and orders of the Government in force at the time of recruitment,
and the said provisions will have overriding effect and the other
earlier provisions under provincial legislation would sub serve the
same.
This Court in the case of Smt.Neera Devi vs. State of U.P.,
Civil Misc. Writ Petition No.7275 of 2011, decided on 05.12.2011 has
clearly taken similar view. Relevant extract of the said judgment is
being quoted below:
"2. Petitioner has sought a mandamus directing
the respondents to appoint him as Assistant Teacher even though he does
not acquire the requisite training qualification by referring Rule 10 of
the U.P. Basic Education (Teachers) Service Rules, 1981 which have been
framed under the U.P. Basic Education Act, 1972.
3. In my view no
such relief can be granted after enactment of Right of Children to Free
and Compulsory Education Act, 2009 (hereinafter referred to as "Act,
2009"). The Act 2009, vide Section 23 (1), provides that any person
possessing such minimum qualification, as laid down by an academic
authority authorised by the Central Government, by notification, shall
be eligible for appointment as a teacher. It reads as under:
"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."
4.
Since the provision does not contemplate appointment of a Teacher who
is not qualified as per Regulations of N.C.T.C., the provisions of
compassionate appointment earlier made even if permit unqualified
persons to be appointed in certain cases, cannot be followed after
framing of Regulations by Authorised Authority. In absence of a
statutory provision prior to Act, 2009, the provisions for compassionate
appointment permitting appointment of untrained persons could have been
complied with since the same had no occasion to infringe any other
statute having overriding effect but after Act, 2009 and Regulations
framed thereunder, the situation has undergone a sea change. It is not
disputed that National Council of Teachers Education has been notified
as Authorised Academic Authority under Section 23 (1) and the said body
has framed Regulations laying down minimum qualification and eligibility
conditions for appointment of Teachers in Primary Schools. In the light
of said provisions, which have been made under Act, 2009; the same have
overriding effect and, therefore, the otherwise provisions under
provincial legislation would sub-serve. I am, therefore, clearly of the
view that the relief, as sought in the writ petition, cannot be granted
in the above circumstances.
5. The writ petition is dismissed."
In
the present case each one of the petitioners had been offered
appointment after the said notification had been published by the
N.C.T.E. followed by U.P. Right of Children to Free and Compulsory
Education Rules, 2011 enforceable with effect from 27.07.2011. Rule 10
of the U.P. Basic Education (Teachers Service Rules, 1981 cannot be read
in isolation rather it has to be read in the context, it has been
provided for. It gives right of relaxation to ex-servicemen and certain
other categories, which is inclusive of compassionate appointment as
well, but the same has to be in accordance with the general rules and
orders of the Government in this behalf in force at the time of
recruitment. At the relevant time, N.C.T.E. had already declared
educational qualification for teacher to be appointed in school defined
under clause (n) of Section 2, which was required along with T.E.T. and
it was mandatory requirement. No person could have been treated to be
eligible for being appointed as teacher without passing the aforesaid
requisite qualification as was prescribed by the N.C.T.E. The 2009 Act
and the Rules framed thereunder were clear and categorical. The
appointments, which had been made prior to enforcement of the Act, were
saved, as the incumbents appointed were required to fulfill the
eligibility criteria within five years from the enforcement of the Act
and in other cases, there has to be specific order by the Central
Government on the request of the State Government, and in the present
case accepted position is that after enforcement of the Act, N.C.T.E.
Norms and U.P. Right of Children to Free and Compulsory Education Rules,
2011, petitioners had been appointed and in view of this relaxation as
has been provided for, could not have been accorded. The Government
Order in regard to compassionate appointment has been pressed in
flagrant violation of statutory provisions, and in view of this
Secretary of the Board on being apprised of this factual situation has
proceeded to remedy the situation by annulling such appointments which
were dehors the statutory provisions. Once appointment of the
petitioners was totally contrary to law not at all subscribed by law,
none of the petitioners were legally eligible and entitled to be
appointed as concept of untrained assistant teacher, is violative of
Article 21A of the Constitution as untrained teacher cannot be
recruited, as proper training of teacher is integral aspect in right of
education being effectuated. In view of this, the Secretary of the Board
has acted well within his right to direct cancellation of such
appointments, which were contrary to law in force on the date when they
had been recruited. Principle of natural justice has no role to play in
such matters, when appointments made are dehors the statutory
provisions, on admitted position, and it would be nothing more but
exercise in futility, as result would be one and the same, and quashing
of the order on this ground would be nothing but perpetuating the
illegality, i.e. permitting untrained teachers to continue.
Petitioners
have tried to submit that amongst untrained Assistant Teachers, two
classes have been created, as service of only those untrained Assistant
Teachers have been terminated, who have been appointed after 27.07.2011,
i.e., after enforcement of U.P. Right of Children to Free and
Compulsory Education Rules, 2011, and the services of untrained teachers
appointed prior to it have not been terminated. Negative equality
cannot be claimed, and said class of teachers are not before this Court,
either individually or collectively, as such this Court is not touching
this question and deciding and deciding the said question, and this
issue is left open to be decided in appropriate proceedings.
In view
of what has been discussed above, all the writ petitions are dismissed.
The claim of the petitioners be considered against existing class III/IV
vacancies except qua class III vacancies which are to be filled up by
way of promotion, preferably within next two months.
Order Date :- 25.7.2012
SRY
Respondent Counsel :- C.S.C.,Mrigraj Singh
19. Case :- WRIT - A No. - 35500 of 2012
Petitioner :- Gyanendra Kumar Srivastava
Respondent :- State Of U.P. And Others
Petitioner Counsel :- N.C. Gupta
Respondent Counsel :- C.S.C.,Nisheeth Yadav
20. Case :- WRIT - A No. - 35501 of 2012
Petitioner :- Pankaj Kumar
Respondent :- State Of U.P. And Others
Petitioner Counsel :- N.C. Gupta
Respondent Counsel :- C.S.C.,Nisheeth Yadav
21. Case :- WRIT - A No. - 35502 of 2012
Petitioner :- Pramod Kumar Singh Yadav
Respondent :- State Of U.P. And Others
Petitioner Counsel :- N.C. Gupta
Respondent Counsel :- C.S.C.,Nisheeth Yadav
21. Case :- WRIT - A No. - 35503 of 2012
Petitioner :- Rakesh Kumar Jaiswal
Respondent :- State Of U.P. And Others
Petitioner Counsel :- N.C. Gupta
Respondent Counsel :- C.S.C.,Nisheeth Yadav
23. Case :- WRIT - A No. - 35504 of 2012
Petitioner :- Azeem Uddin
Respondent :- State Of U.P. And Others
Petitioner Counsel :- N.C. Gupta
Respondent Counsel :- C.S.C.,Nisheeth Yadav
Hon'ble V.K. Shukla,J.
In
this bunch of writ petitions, the petitioners have rushed to this Court
complaining therein that each one of the petitioners had been appointed
as untrained assistant teacher on compassionate basis in basic schools
run and managed by the U.P. Basic Shiksha Parishad. Each one of the
petitioners had been appointed as assistant teacher on compassionate
basis under the orders passed by the respective District Basic
Educations Officers, with clear cut stipulation that the said engagement
was being made for a fixed pay of Rs.7300/- per month, and after the
appointment in question was made in consonance with the terms and
conditions of the Government Order dated 4th September, 2000, each one
of the petitioners was required to acquire B.T.C. training
qualification, and regular appointment was be treated only after the
incumbent successfully completed the B.T.C. Course. Appointment as
untrained teacher had been offered, and had been accepted. Some of the
petitioners have been sent for B.T.C. training course also. The services
of each one of the petitioners have been disengaged pursuant to
circular letter dated 12.06.2012 issued by the Secretary, Basic
Education Board, U.P. Allahabad on the premises that untrained teacher
cannot be appointed, after enforcement of the U.P. Right of Children to
Free and Compulsory Education Rules, 2011.
Since pure common question
of law is involved in all these writ petitions, they are being decided
by a common judgment and writ petition No.33828 of 2012 is being treated
as leading petition. In this writ petition also, the petitioners have
been accorded appointment as untrained assistant teacher with indication
that they would acquire B.T.C. certificate in consonance with the
Government Order dated 04.09.2000 and they would be offered regular
appointment only after completing successfully B.T.C. course. However,
if they fail in the aforementioned examination, then except for offering
appointment on class IV post, there would be no other option.
Petitioners of the aforesaid writ petition were sent for training at the
District Institute of Education and Training, Budaun. Petitioners have
come up with specific case that Secretary, Basic Education Board; U.P.
Allahabad has issued circular on 12.06.2012 directing cancellation of
compassionate appointment by mentioning that with effect from 27th July,
2011, the Rules known as the U.P. Right of Children to Free and
Compulsory Education Rules, 2011 has come into force, and as per the
same, without passing Teacher Eligibility Test (T.E.T.) no one can be
offered appointment and accordingly, all those incumbents, who have been
offered appointment in breach of the aforesaid Rules, their
appointments have been directed to be cancelled. Pursuant to the
aforementioned circular issued by the Secretary, Basic Education Board,
respective District Basic Education Officers have proceeded to pass
orders canceling the appointment of the petitioners. At this juncture,
petitioners have approached this Court.
On the matter being taken up,
Sri Niraj Updhyaya, learned standing counsel as well as Sri A.K. Yadav,
Advocate representing the Basic Education Board, contended that since
in this bunch of writ petitions pure legal question is involved, pure
legal submissions would be advanced and the requisite pleadings are
there in writ petition, as such they do not propose to file any counter
affidavit. Similar stand has been taken by other respective counsel
appearing for the respondents.
Sri Ashok Khare and Sri M.D. Singh
Shekhar, Senior Advocates, submitted with vehemence that grant of
compassionate appointment to the petitioners was an exception to normal
rule of appointment and in the present case, each one of the petitioners
had been validly appointed as untrained assistant teacher in consonance
with the Government Order, which held the field providing for
compassionate appointment. In view of this, the appointment so made in
no way was to be affected on the strength of Board's circular dated
12.06.2012, and further as field of offering compassionate appointment
remains intact, the same is beyond the scope of the Right of Children to
Free and Compulsory Education Act, 2009 (called "the Act, 2009", for
short), as such passing of order of cancellation of petitioners'
appointment, that too without providing opportunity of hearing, is
unjustifiable and uncalled for. Argument to the similar effect has been
advanced by other counsel representing the petitioners.
Countering
the said submissions, Sri Niraj Updhyaya, learned standing counsel as
well as Sri A.K. Yadav, Advocate representing the Basic Education Board,
on the other hand, contended that once 2009 Act, which is Central Act,
has been enforced, then in view of Section 23 (2) thereof, which opens
with non-obstante clause, any incumbent without having passed the T.E.T.
cannot be appointed as assistant teacher, and as far as relaxation in
eligibility criteria is concerned, same is the prerogative of the
Central Government, and till date no such relaxation has been granted.
The scheme of the things provided for would go to show that only those
selections have been left out, qua which selection process had already
started and such appointment may be made in accordance with N.C.T.E.
(Determination of Minimum Qualifications For Recruitment of Teachers in
School) Regulations, 2001 as amended from time to time as per circular
dated 29.07.2011 and sub-para (b) of para 5 provides that qualification
prescribed shall apply to all teachers except for the teacher of
Physical Education and further regarding Art Education, Craft Education,
Home Science, Work Education etc., the same eligibility norms shall
continue till such time N.C.T.E. Lays down minimum qualification, and in
reference to any fresh appointment, the incumbent has to have T.E.T. to
his/her credit, and as far as petitioners are concerned, as their
engagement as untrained assistant teacher had been done in breach of the
aforesaid Act/Rules, as such all the writ petitions deserve to be
dismissed.
In order to appreciate the respective arguments so
advanced relevant statutes are being looked into. There are three
statutes relevant in this matter. One is "Uttar Pradesh Basic Education
Act, 1972" (hereinafter referred to as "Act 1972") and the Rules framed
thereunder, Second is "National Council For Teacher Education Act, 1993"
(hereinafter referred to "Act 1993") and third is "Right of Children to
Free and Compulsory Education Act, 2009" (hereinafter referred to as
"Act 2009").
Prior to the enactment of Act 1972, primary education in
the State was in quite disorganized manner. There were two types of
Primary Schools running in the entire State. One owned and managed by
local bodies and rests were private institutions. In the rural areas,
primary schools of first category were being managed by Zila Parishads
and in urban areas they were being run by Municipal Boards and
Mahapalikas etc. The funds to these schools were the responsibility of
concerned local bodies. Privately managed Primary Schools were also
having two types of categories, one which were solely managed by private
bodies from their own resources and rest were those which were getting
some kind of financial grant/assistance from State Government through
Education Department or some other Departments like Harijan and Social
Welfare etc.
To bring uniformity in Primary schools run by Local
Bodies, considering day to day deteriorating conditions of such schools,
a public demand through their representatives was raised requiring
State to take immediate steps for improving primary education in the
State and hence with an objective of reorganization, reformation and
expanding elementary education, State Government came forward to take
over control of such schools, as were being run by Local Bodies into its
own hands. It enacted U.P. Basic Education Ordinance 1972 giving effect
to its provisions w.e.f. Educational Session 1972-73. The said
ordinance was substituted by Act 1972. It provided for establishment of
U.P. Board of Basic Education (in short the 'Board') and by virtue of
Section 9, all the employees of Primary Schools maintained by local
bodies stood transferred and became employee of the Board. Section 19
confers power upon the State Government to frame rules for the purpose
of carrying out Act 1972 in general and in particular the recruitment
and conditions of service of the persons appointed to the post of
officers, teachers and employees under Section 6 and 9 and also in
respect to such staff teaching and non teaching of other basic schools
recognized by the Board. The provisions of Act 1972 was given overriding
effect over otherwise provisions in U.P. Panchayat Raj Act, 1947, U.P.
Municipalities Act, 1916 and U.P. Municipal Corporation Act, 1952 by
inserting Section 13A w.e.f. 21st June, 1979. All the basic schools in
the State of U.P., now, if recognized by the Board, have to conform to
the provisions of Act 1972 and the rules framed thereunder.
In
respect to teachers of Primary Schools maintained by the Board, Rules
1981 have been framed known as U.P. Basic Education (Teachers) Service
Rules, 1981, published in U.P. Gazette (Extra Ordinary) on 03.01.1981.
The application of these rules is provided in Rule 3, as under:
"Extent of application.- These rules shall apply to :
(i) All teachers of local bodies transferred to the Board under Section 9 of the Act; and
(ii) all teachers employed for the Basic and Nursery Schools established by the Board."
Rule
4 deals with the strength of the service. Rule 5deals with the source
of recruitment. Rule 6 deals with the age. Rule 8 deals with the
academic qualifications and mentions that essential qualification of the
candidates for appointment to a post referred to in clause (5) of rule 5
would be as shown below against each. Rule 8 is being extracted below:
"8.
Academic Qualifications:- 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 Qualifications
(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,
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 qualifications 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:
Post
Experience
(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 five years' experience as permanent Head Master or Head Mistress
of Junior Basic School or permanent and 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 as 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 post referred to in clause (a) and
sub-clause (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
centers 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."
Rule 10 of the aforesaid Rules
deals with the authority of relaxation for ex-servicemen and certain
other categories, which is inclusive of compassionate appointment also,
and the same reads as below:
"10. Relaxation for ex-servicemen and
certain categories.- Relaxation, if any, from the maximum age limit,
educational qualifications or/and any procedural requirements of
recruitment in favour of the ex-servicemen, disabled military personnel,
dependents of military personnel dying in action, dependents of Board's
servants dying in harness and sportsmen, in accordance with the general
rules and orders of the Government in this behalf in force at the time
of recruitment."
Rule 14 deals with determination of vacancies
and preparation of list. Rule 15 deals with notification of vacancies
and preparation of list of eligible candidates for certain posts/ Rule
16 deals with constitution of selection committee. Rule 17 deals with
procedure for direct recruitment to a post for teaching a language. Rule
17A deals with procedure for direct recruitment to a post for teaching
subjects other than language. Rule 18 deals with deals with procedure
for recruitment by promotion. Rule 19 deals with appointment.
In
respect of planned and coordinated development for teachers education,
the provisions of 1993 Act has been enforced. This is a Central Act
enacted by Parliament and after receiving assent of the President on
29.12.1993 was published in the Gazette of India, (Extra.) Part II,
Section 1, dated 30.12.1993. Section 1(3) provides that Act 1993 shall
come into force on such date as the Central Government may appoint by
notification in initial gazette. Pursuant thereto the Central Government
by notification dated 1.07.1995 appointed the same day i.e. 01.7.1995
for enforcement of Act 1993.
The Act 1993 was enacted with an
objective of achieving planned and coordinated development for teacher
education system throughout the country, the regulation and properly
maintenance of norms and standards in teacher education system and for
matters connected therewith. The Act 1993 contemplates establishment of a
council called as "National Council For Teacher Education" (hereinafter
referred as "NCTE") and its functions are enumerated in detail in
Section 12 of Act 1993. It clearly talks of planned and co-ordinated
development of teacher education, and determination and maintenance of
standards for teacher education. It is in this regard various subjects
and functions of NCTE have been enumerated in Section 12 from Clauses
(a) to (n).
The Act 1993 contemplates recognition and permission of
NCTE for running courses or training in teacher education. Section 17
provides, if course or training in teacher education has been imparted
or obtained in violation of the provisions of the Act, such course or
training shall not be treated a valid qualification for the purpose of
employment under Central Act, State Government, University, any
School/College or other educational body aided by Central or the State
Government. The restriction imposed by Section 17(4) is only to the
extent that a training or course in teacher education which does not
conform to the various provisions of Act 1993 shall not be a valid
qualification for employment as stated above, and nothing more and
nothing less. The entire Act 1993 does not talk of the manner in which
appointments of teachers shall be made, the eligibility to be laid down
for appointment of teachers in Primary Schools etc. except
qualification. It is confined to the standard and quality of teachers'
education. NCTE can lay down minimum qualification which may be
prescribed for appointment of a teacher but it does not control the
mode, manner and other relevant provisions regarding recruitment and
appointment of such teachers. In State of U.P. and Others Vs. Bhupendra
Nath Tripathi and Ors. 2010 (5) ESC 630, the Apex Court has clarified
this situation that NCTE can lay down minimum qualification for
appointment of teacher by competent appointing authority or the
authority competent to frame rules and regulations may lay down any
qualification over and above the minimum qualification prescribed by
N.C.T.E.
Article 41 in Part IV (Directive Principles of State Policy)
provides that the State shall, within the limits of its economic
capacity and development, make effective provision for securing right to
work, to education etc. Similarly Article 45 provides that State shall
endeavour to provide, within a period of ten years from the commencement
of Constitution, free and compulsory education for all children until
they complete the age of fourteen years. Said provisions have come up
before Apex Court Court in Mohini Jain Vs. State of Karnataka, AIR 1992
SC 1858 and Unni Krishnan J.P. Vs. State of A.P., AIR 1993 SC 2178 and
the cases followed thereafter observing Primary Education to children
from age of 6 to 14 years as a constitutional right, efforts were made
by Governments, Central and State both, to expand primary education by
establishing primary schools at Village Panchayat level in a major way
and this really gave opportunity to open number of new schools and
correspondingly increase in number of teachers requiring to man these
institution. Parliament also recognized above right by inserting Article
21A in the Constitution i.e. 'Right to Education', by Constitution
(86th Amendment) Act, 2002, and, simultaneously inserted Clause (k) in
Article 51A vide Section 4 of Constitution (86th Amendment) Act, 2002.
The Parliament also in furtherance of the above constitutional
provisions, come forward by enacting Act 2009 published in Gazette of
India on 27.8.2009. By virtue of Section 1(3) of Act 2009, it has been
given effect from 01.4.2010.
One of the major change it has brought,
besides other, is that no Primary School other than a school
established, owned or controlled by the appropriate Government or local
body after commencement of 2009 Act shall be established or function
without obtaining a certificate of recognition from such authority, as
may be prescribed. For the purpose of seeking recognition, the school
has to conform the norms and standard specified in Section 19 of Act
2009 read with the schedule appended thereto. The Act 2009, vide Section
23(1), also provides that any person possessing such minimum
qualification, as laid down by an academic authority authorized by the
Central Government, by notification, shall be eligible for appointment
as a teacher.
Section 23 (2) of the Right of Children to Free and
Compulsory Education Act, 2009 further proceeds to mention that 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. A proviso has also been added to the aforesaid sub-section
(2) of Section 23 mentioning 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. For the sake of convenience the provisions of
sub-sections (1) and (2) of Section 23 are being excerpted 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.
In exercise of
powers conferred by Section 38 of 2009 Act, Rules have been framed and
the same have been published in the gazette dated 09.04.2010. Part VI of
the said Rules deals with the term "teacher". Rule 17 deals with
minimum qualification, rule 18 deals with relaxation of minimum
qualification, rule 19 deals with acquiring minimum qualifications.
Rules 17, 18 and 19 of the aforesaid Rules are being quoted below:
"17.
Minimum Qualifications.- (1) The Central Government shall, within one
month of the appointed date, notify an academic authority for laying
down the minimum qualifications for a person to be eligible for
appointment as a teacher.
(2)The academic authority notified under
sub-rule (1) shall within three months of such notification, lay down
the minimum qualifications for a person to be eligible for appointment
as a teacher in an elementary school.
(3)The minimum qualifications
laid down by the academic authority referred in in sub-rule (1) shall be
applicable for every school referred to in clause (n) of Section 2.
18.
Relaxation of minimum qualifications.- (1) The State Government and
Union Territory shall, within six months from commencement of the Act,
estimate the teacher requirements as per the norms in the Schedule of
all schools referred to in clause (n) of Section 2
(2) Where as State
Government or Union Territory does not have adequate institutions
offering courses or training in teacher education, or persons possessing
minimum qualifications as notified in sub-rule (2) of rule 17 are not
available in sufficient numbers in relation to the requirement of
teachers estimated under sub-rule (1) the State Government or the Union
Territory shall request, within one year of the commencement of the Act,
the Central Government for relaxation of the prescribed minimum
qualifications.
(3) On receipt of the request referred to in sub rule
(2), the Central Government shall examine the request of the State
Government or the Union Territory and may, by notification relax the
prescribed minimum qualifications.
(4) The notification referred to
in sub rule (3) shall specify the nature of relaxation and the time
period, not exceeding thee years, but not beyo9nd five years from the
commencement of the Act, within which the teachers appointed under the
relaxed conditions acquire the minimum qualifications specified by the
academic authority notified under sub-section (1) of Section 23.
(5)
After six months from the commencement of the Act, no appointment of
teacher for any school can be made in respect o any person not
possessing the minimum qualifications notified in sub-rule (2) of Rule
17, without the notification of relaxation referred to in sub-rule (3).
(6)
a person appointed as a teacher within six months of the commencement
of the Act, must possess as least the academic qualifications nor lower
than higther secondary school certificate or equivalent.
19.
Acquiring minimum qualifications. - (1) The State Government and Union
Territory shall provide adequate teacher education facilities to ensure
that all teachers in schools referred to in sub-clause (I), and schools
owned and managed by the Central Government or the State Government or
Union Territory or local authority under sub-clause (iii) of clause (n)
of Section 2, who doe not possess the minimum qualifications laid down
under sub-rule (2) of rule 17 at the time of commencement of the Act, to
acquire such minimum qualifications within a period of five years from
the commencement of the Act.
(2) For a teacher, or a school referred
to in sub-clause (ii) and (iv) of clause (n) of Section 2 and of a
school referred to in sub clause (iii) of clause (n) of Section 2 not
owned and managed by the Central Government, State Government or Union
Territory or local authority, who doe not possess the minimum
qualifications laid down under sub-rule (2) of rule 17 at the time of
commencement of the Act, the management of such school shall enable such
teacher to acquire such minimum qualifications within a period of five
years from the date of commencement of the Act."
In exercise of
powers conferred by sub-section (1) of Section 23 of 2009 Act, the
Central Government has authorized the National Council for Teachers
Education (NCTE) as Academic Authority to lay down minimum
qualifications for a person to be eligible for appointment as teacher.
In exercise of the said authority, the N.C.T.E. has proceeded to lay
down minimum qualifications for a person to be eligible for appointment
as teacher. Said Notification has been published on 23.08.2000, and
thereafter fresh notification has been issued with modifications on
29.07.2011. Relevant extract of the same is extracted below:
"NATIONAL COUNCIL FOR TEACHER EDUCATION
NOTIFICATION
New Delhi, the 29th July, 2011
F.No.61-1/2011/NCTE/N&S).-In
exercise of the powers conferred by sub-section (1) of the Section 23
of Right of Children to Free and Compulsory Education Act, 2009 (35 of
2009) and in pursuance of the Notification No.S.O. 750(E) dated 31st
March, 2010 issued by the Department of School Education and Literacy,
Ministry of Human Resource Development, Government of India, the
National Council for Teacher Education (NCTE) hereby makes the following
amendments to the Notification No.215 dated 25th August, 2010 published
in the Gazette of India, Extraordinary, Part-III, Section-4, vide
F.No.61-1/2011-NCTE (N&S), dated the 23rd August, 2010, laying down
the minimum qualifications for a person to be eligible for appointment
as a teacher (hereby referred to as the Principal Notification), namely
:-
(I) For sub-para (i) of para 1 of the Principal Notification, the following shall be substituted, namely:-
1. Minimum Qualifications:-
(i) Classes I-V
(a)
Senior Secondary (or its equivalent) with at least 50% marks and 2-year
Diploma in Elementary Education (by whatever name known)
OR
Senior
Secondary (or its equivalent) with at least 45% marks and 2-year
Diploma in Elementary Education (by whatever name known), in accordance
with the NCTE (Recognition Norms and Procedure), Regulations, 2002.
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor of Elementary Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Education (Special Education)
OR
Graduation and two year Diploma in Elementary Education (by whatever name known)
AND
(b)
pass in the Teacher Eligibility Test (TET), to be conducted by the
appropriate Government in accordance with the Guidelines 16
framed by the NCTE for the pourpose.
(II) For sub-para (ii) of para 1 of the Principal Notification, the following shall be substituted, namely :-
1 (ii) Classes VI - VIII
(a) Graduation and 2-year Diploma in Elementary Education (by whatever name known)
OR
Graduation with at 50% marks and 1-year Bachelor ion Education (B.Ed.)
OR
Graduation
with at least 45% marks and 1-year Bachelor in Education (B.Ed.), in
accordance with the NCTE (Recognition Norms and Procedure) Regulations
issued from time to time in this regard.
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor in Elementary Education (B.El.Ed.)
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4-year B.A./B.Sc.Ed. or B.A. Ed./B.Sc.Ed.
OR
Graduation with at least 50% marks and 1-year B.Ed. (Special Education)
AND
(b) Pass in Teacher Eligibility Test (TET), to be conducted by the 17
appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose.
(III) For para 3 of the Principal Notification the following shall be substituted, namely:-
(i)
Training to be undergone:-A person - (a) with Graduation with at least
50% marks and B.Ed. qualification or with at least 45% marks and 1-year
Bachelor in Education (B.Ed.), in accordance with the NCTE (Recognition
Norms and Procedure) Regulations issued from time to time in this regard
shall also be eligible for appointment to Class I to V up to 1st
January, 2012, provided he/she undergoes, after appointment, an NCTE
recognized 6-month Special Programme in Elementary Education;
(b)
with D.Ed. (Special Education) or B.Ed. (Special Education)
qualification shall undergo, after appointment an NCTE recognized
6-month Special Programme in Elementary Education.
(ii) Reservation Policy :
Relaxation
up to 5% in the qualifying marks shall be allowed to the candidates
belonging to reserved categories, such as ST/ST/OBC/PH.
(IV) For para 5 of the Principal Notification, the following shall be substituted, namely:-
5.(a)
Teacher appointed after the date of this notification in certain
cases:-Where an appropriate Government or local authority or a shool has
issued an advertisement to initiate the process of appointment of
teachers prior to the date of this Notification, such appointments may
be made in accordance with the NCTE (Determination of Minimum
Qualifications for Recruitment of Teachers in Schools) Regulations, 2001
(as amended from time to time).
(b)The minimum qualification
norms referred to in this Notification apply to teachers of Languages,
Social Studies, Mathematics, Science, etc. In respect of teachers for
Physical Education, the minimum qualification norms for Physical
Education teachers referred to in NCTE Regulation dated 3rd November,
2001 (as amended from time to time) shall be applicable. For teachers of
Art Education, Craft Education, Home Science, Work Education, etc. the
existing eligibility norms prescribed by the State Governments and other
school managements shall be applicable till such time the NCTE lays
down the minimum qualifications in respect of such teachers."
A
perusal of the aforesaid notification would go to show that minimum
qualification has been provided for a person to be eligible for
appointment as teacher and in addition to it, it has also been provided
that the incumbent has to pass Teacher Eligibility Test (T.E.T.) to be
conducted by the appropriate Government in accordance with the
guidelines framed by the N.C.T.E. for the purpose and paragraph 5 (a)
and 5 (b) of said circular has carved out exception to the applicability
of said Circular. In the State of U. P. Rules have been framed known as
U.P. Right of Children to Free and Compulsory Education Rules, 2011,
and therein part VI thereof deals with ''teacher'. Rule 15 deals with
minimum qualification of teachers, rule 16 deals with relaxation of
minimum qualification, rule 17 deals with acquiring of minimum
qualifications. Said Rules have been enforced with effect from 27th
July, 2011. The aforesaid Rules 15, 16 and 17 of the aforesaid Rules are
being quoted below:
"15. Minimum qualification of teachers
(Section 23 (1).- The minimum educational qualifications for teachers
laid down by an authority authorized by the Central Government, by
notification, shall be applicable for every school referred to in clause
(n) of Section 2.
16.Relaxation of minimum qualification (Section 23
(2).- (1) The State Government shall estimate the teacher requirement
as per the norms in the Schedule for all schools referred to in clause
(n) of Section 2 within the State.
(2) If teachers possessing
prescribed minimum qualifications are not available as estimated under
sub-rule (1), then the State Government shall request the Central
Government by 31st March, for relaxation of the prescribed minimum
qualification.
(3) The State Government shall take necessary action
after the notification issued by the Central Government, for relaxation
in the minimum qualification on the request under sub-rule (2).
(4)
The relaxation from minimum qualifications shall be for maximum period
of five years from the commencement of the Act, i.e. till 31st March,
2015, within such period the teachers appointed under relaxed condition
shall acquire the minimum educational qualifications prescribed under
rule 15.
(5) No appointment of teacher for any school can be made in
respect of any person not possessing the minimum qualifications
prescribed under rule 15 without the notification referred to in
sub-rule (3).
17. Acquiring of minimum qualification (proviso to
Section 23 (2).- The State Government shall made a request to the
academic authority notified by the Central Government for enhancement of
capacity of teacher education and for providing required facilities for
distant mode teacher training to ensure that all teachers in schools
established, owned or controlled by the State Government or a local
authority or specified schools, who do not possess the minimum
qualifications laid down under Rule 15 at the time of commencement of
the Act, acquire such minimum qualifications within a period of five
years from the commencement of the Act. The State Government shall after
obtaining the approval as per requirement provide for training of all
such teachers.
(2) The management of aided or unaided schools shall
enable such teachers, who do possess the minimum qualifications laid
down under Rule 15 at the time of commencement of the Act, to acquire
the same within a period of five years from the commencement of the
Act."
Thereafter, in the State of U.P. amendment has been
introduced in the U.P. Basic Education (Teachers) Service Rules, 1981 on
09.11.2011, and Rule 8 thereof has been amended known as U.P. Basic
Education (Teachers) Service (Twelfth Amendment) Rules, 2011 . A chart
containing existing rule as well as amended rule is being extracted
below:
Column -I Existing Rule
Column-II Rule as hereby substituted
"8.
Academic Qualifications:- 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:
"8. Academic Qualifications:- 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 Qualifications
Post
Academic Qualifications
(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
Mistress of Nursery School
Bachelor's
Degree from a University established by law in India or a degree
recognized by the Government as equivalent thereto together with the
Certificate of teaching (Nursery) from recognized training institution
of Uttar Pradesh or any other training course recognized by the
Government as equivalent thereto and have passed teacher eligibility
test conducted by the Government of Uttar Pradesh.
(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,
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.
(ii) Assistant Master and Assistant Mistress of Junior Basic School
Bachelor's
degree from a University established by law in India or a degree
recognized by the Government as equivalent thereto together with any
other training qualification consisting of a Basic Teacher's Certificate
(BTC), two years' BTC (Urdu) Vishist BTC and have passed teacher
eligibility test conducted by the Government of Uttar Pradesh.
(2)
The essential qualifications 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:
(2) The essential qualifications of
candidates for appointment to a post referred to in sub-clause (iii) and
(iv) of clause (b) 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
(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.
(ii) Training qualification
consisting of a Basic Teacher's Certificate, Certificate of Teaching or
any other training course recognized by the Government as equivalent
thereto and have passed teacher eligibility test conducted by the
Government of Uttar Pradesh.
(iii) Head Master or Head Mistress for Senior Basic School
At
least five years' experience as permanent Head Master or Head Mistress
of Junior Basic School or permanent and 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 as serial numbers (ii) or (iii) the
field of eligibility may be extended by the Board by giving relaxation
in the period of experience.
(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 and 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 post referred to in clause (a) and
sub-clause (iii) and (iv) of clause (b) of Rule 5 for teaching Urdu
Language shall be as follows:
(4) The essential qualifications of
candidates for appointment to the post referred to in clause (a) and
sub-clause (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.
(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 centers 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.
(ii) Basic Teacher's Certificate from any of the
training centers 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 or Basic Teacher's
Certificate (BTC) (Urdu) and have passed teacher eligibility test
conducted by the Government of Uttar Pradesh.
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:
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.
(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 qualifications of two years B.T.C. Urdu special training course.
(ii)
Training qualification of two years B.T.C. Urdu special training course
and have passed teacher eligibility test conducted by Government of
Uttar Pradesh
In respect of grant of compassionate
appointment under 1981 Rules, there is no specific provision. Rule 10 of
the 1981 Rules talks of relaxation and the State Government in its turn
has issued Government Order on 04.09.2000 dealing with the grant of
compassionate appointment. Relevant extract of the said Government Order
is being quoted below:
"¼4½ ,sls e`rd vkfJr tks lsok;kstu gsrq
vkosnu i= izLrqr djus dh frfFk dks lgk;d v/;kid ds in gsrq lsok fu;eksa
esa fofgr 'kSf{kd vgZrk j[krs gksa] ijrq izf'k{k.k vgZrk ugha j[krs@iwjh
ugha djrs] dks vizf'kf{kr v/;kid ds :i esa lsok;kstu gsrq vkosnudjus ij
;Fkk lEHko rhu ekg ds vanj lsok;kstu dh lqfo/kk iznku dh tk;sxhA ,sls
e`rd vkfJr dks lsok;kstu ds ckn lacaf/kr tuin ds ftyk f'k{kk ,oa
izf'k{k.k laLFkku esa izkjEHk gksus okys csfld v/;kid izek.k i=
¼ch0Vh0lh0½ izf'k{k.k ikB;dze ds vkxkeh igys cSp esa izf'k{k.k gsrq
izos'k fn;k tk;sxkA e`rd vkfJr ds :i esa izkFkfed fo|ky; esa lgk;d
v/;ikd@v/;kfidk ds in ij fu;fer fu;qfDr iznku djus ds fy, mudks
ch0Vh0lh0 izf'k{k.k ikB;dze lQyrkiwoZd iw.kZ djuk vfuok;Z gksxkA
izf'k{k.k vof/k esa mUgsa vizf'kf{kr v/;kid ds :i esa fu;r osru] tSlk fd
'kklu }kjk le;≤ ij fu/kkZfjr fd;k x;k gks ns; gksxkA csfld v/;kid
izf'k{k.k ikB;dze esa mRrh.kZ gksus ds ckn gh izkFkfed fo|ky; esa lgk;d
v/;kid ds in ij fu;fer fu;qfDr iznku dh tk;sxhA
fu;qDr izkf/kdkjh ,oa
ftyk f'k{kk ,oa izf'k{k.k laLFkku dk ;g nkf;Rogksxk fd og vizf'kf{kr
v/;kid ds :i esa lsok;ksftr e`rd vkfJr vH;fFkZ;ksa ds lsokjr izf'k{k.k
dh O;oLFkk muds lsok;kstu ds ckn izkjEHk gksus okys igys izf'k{k.k l=
esa lqfuf'pr djsaxsA
,sls e`rd vkfJr dks tks mi;qZDr lsokjr izf'k{.k
dks fu/kkZfjr vof/k esa lQyrkiwoZd iw.kZ djus esa vlQy jgrs gSa] ds fy,
;g fodYi miyC/k jgsxk fd og prqFkZ Js.kh ds in lkis{; fu;qfDr gsrq
vkosnu dj vFkok izf'k{k.k mRrh.kZ djus rd vizf'kf{kr v/;kid ds :i esa
fu;r osru ij cus jgsaA fdUrq izfrca/k gS fd ,sls lsokjr ch-Vh-lh-
ikB;dze ds izf'k{k.kkFkhZ dh Hkkafr gh ch0Vh0lh0 ikB;dze dh vuqiwjd
ijh{kk gsrq fofgr fu;eksa ds vuqlkj volj vuqeU; gksaxsA fdUrq ;fn
vH;FkhZ rc Hkh ch0Vh0lh0 ds vafre ijh{kk mRrh.kZ djus esa foQy jgrs gS
rks ,sls vH;FkhZ ds fy, prqFkZ Js.kh ds in ds lkis{; fu;fer fu;qfDr ds
vfrfjDr vU; dksbZ fodYi 'ks"k ugha jgsaxsA vr% ,sls vH;FkhZ tks
ch0Vh0lh0 ijh{kk esa vafre :i ls foQy jgrs gS] dks lgk;d v/;kid in ds
fy, vH;FkZu Lor% fujLr le>k tk;sxk vkSj ch0Vh0lh0 ijh{kk esa vafre :i
ls vlQy gksus ds ekg ds vafre dk;Z fnol ls vizf'kf{kr v/;kid ds :i esa
Hkh mudh fu;qfDr Lor% lekIr le>h tk;sxhA fdUrq ,sls vH;FkhZ ;fn
prqFkZ Js.kh ds fjDr@vf/kla[; in ds lkis{; lsok;kstu dh izkFkZuk djrs
gS] rks ml fopkj fd;k tk ldsxkA
¼5½ ,sls e`rd vkfJr tks lacaf/kr
deZpkjh dh e`R;q ds fnukad dks e`rd vkfJr ds :i esa lsok;kstu ds fy,
U;wure 'kSf{kd vgZrk b.VjehfM,V vFkok mlls vf/kd j[krs gksa vkSj csfld
f'k{kk ifj"kn ds v/khu vf/kuLFk Lrjksa ij fyfid ds lEoxZ ds lcls uhps ds
in ij lsok;kstu ds fy, vU;Fkk vgZ gks] dks lacaf/kr tuin ds fyfid ds
fjDr in ds lkis{; laoxZ esa lcls uhps ds in ij lsok;kstu isnku fd;k
tk;sxkA
tuin esa fjDr fyfid ds in ij e`rd vkfJr ds :i esa lsok;kstu
ds fy, izkIr leLr vkosnu i=ksa dks izFke vkxr izFke iznRr ds vk/kkj ij
iathd`r fd;k tk;sxk rFkk foHkkx esa fjDr gksus okys inksa ds lkis{;
izFke vkxr izFke iznRr ds fu;e dk ikyu lqfuf';r djrs gq, lsok;kstu iznku
fd;k tk;sxkA fu;qDr izkf/kdkjh rnuqlkj e`rd vkfJr vH;fFkZ;ksa dh lwph
dks izR;sd ekg gksus okyh fjfDr ds lkis{; lsok;ksftr e`rd vkfJr dk uke
iznf'kZr djrs gq, mDr lwph dk rnuqlkj la'kksf/kr dj vxys ekg ds izkjEHk
esa v|kof/kd la'kksf/kr lwph dk;kZy; ds lwpuk iFVy ij iznf'kZr djrs
jgsaxsA r`rh; Js.kh ds fjDr in ds lkis{; e`rd vkfJr lsok;kstu ds fy,
izR;sd vH;FkhZ ds uke fu;qfDr izkf/kdkjh ds dk;kZy; esa iathd`r gksus dh
frfFk ls ikap o"kZ dh vof/k iwjh gksus ds ekg ds vafre dkd;Z fnol rd
;fn izFke vkxr izFke iznRr ds fl)kUr ds vuqlkj lsok;kstu gsrq Js.kh rhu
dh fjfDr miyC/k ugha gksrh rks lacaf/kr vH;FkhZ dk uke iathd`r
vH;fFkZ;ksa dh lwph ls fudky fn;k tk;sxk fdUrq bl vof/k ls iwoZ ;fn
Js.kh pkj ds fjDr in@vf/kla[; in ds lkis{; lsok;kstu gsrq viuk
la'kksf/kr vkosnu i= fu;qDr izkf/kdkjh ds dk;kZy; esa iathd`r djkysa rks
ml ij fopkj fd;k tk;sxkA
e`rd vkfJr ifjokj dh dfBu ifjfLFkfr;ksa dks
n`f"Vxr j[krs gq, ;fn dksbZ vH;FkhZ fyfid lEoxZ ds in dh fjDr ds lkis{;
lsok;kstu esa lEHkkfor foyEc dks n`f"Vxr j[krs gq, ;fn rRdky lsok;kstu
dh vko';drk vuqHko djrk gks rks fu;qfDr izkf/kdkjh ds fy, ,sls
vH;fFkZ;ksa ds laca/k esa prqFkZ Js.kh esa fjDr ;k vf/kla[;k inksa ds
lkis{; e`rd vkfJr ds iqujhf{kr vkosnu i= izLrqr djus ij lsok;kstu djus
dk vf/kdkjh gksxkA ;gka ;g Li"V fd;k tkrk gS fd ,d ckj e`rd vkfJr ds :i
esa iznRr lsok;kstu dh lqfo/kk ij iquZfopkj dk dksbZ volj ugha jgsxkA
¼6½
,sls e`rd vkfJr ftudh U;wure 'kSf{kd ;ksX;rk twfu;j gkbZ Ldwy gS] dks
csfld f'k{kk ifj"kn ds tuin Lrjh; dk;kZy; esa fjDr in vFkok ifj"knh;
fo|ky;ksa esa prqFkZ Js.kh ds fjDr ;k vf/kla[; in ij lsok;kstu dh
lqfo/kk iznku dh tk;sxhA tuin Lrjh; dk;kZy; ds laca/k esa vf/kla[; in ds
fo:) e`rd vkfJr lsok;kstu vuqeU; ugha gksxkA
¼7½ vf/kla[; in Hkfo";
esa fjDr gksus okys inksa ds lkis{; le; le; ij lek;ksftr fd;s tk;saxsA
fu;qDr izkf/kdkjh tuin dh bdkbZ ekurs gq, fjDr@vf/kla[; inksa ds fo:)
e`rd vkfJrksa dks lsok;ksftr djsaxsA tuin ds dk;kZy;ksa esa fdlh Hkh
vf/kla[; in ds fo:) fu;qfDr;ka ugha dh tk;sxhA vf/kla[; in ds in/kkjksa
}kjk dh x;h lsok dh x.kuk osru fu/kkZj.k vkSj lsokfuo`Rr ykHkksa ds fy,
dh tk;sxhA
¼8½ e`rd vkfJr }kjk lacaf/kr deZpkjh ] ds e`R;q ds fnukad
ls ikap o"kZ ds Hkhrj lsok;kstuds fy, vkosnu izLrqr fd;k tk ldrk gS
ijUrq tgka jkT; ljdkj dks ;g lek/kku gks tk;s fd lsok;kstu ds fy, vkosnu
djus ds fy, fu;e le; lhek ls fdlh fof'k"V ekeys esa vuqfpr dfBukbZ
gksrh gS ogka og vis{kkvksa dks] ftUgsa og ekeys esa U;k;laxr vkSj
lkE;iw.kZ jhfr ls dk;Zokgh djus ds fyf, vko';d le>s] vfHk;qDr ;k
f'kfFky dj ldrh gSA fu;eksa esa bl vk'k; dh vfHk;qfDr@f'kfFkyhdj.k ds
laca/k esa izLrko lacaf/kr fu;qfDr izkf/kdkjh }kjk f'k{kk funs'kd ¼cs0½
ds ek/;e ls 'kklu dks izsf"kr fd;s tk;saxsA
¼9½ mRrj izns'k lsokdky
esa e`r ljdkjh lsodksa ds vkfJrksa dh HkrhZ ls lacaf/kr le; le; ij
la'kksf/kr fu;ekoyh dh O;oLFkkvsa ds v/khu mRrj izns'k csfld f'k{kk
ifj"kn ds deZpkfj;ksa ds e`rd vkfJr dk rkRi;Z e`rd f'k{k.k@f'k{k.ksRrj
deZpkjhds iq= vfookfgr vFkok fo/kok iq=h] iRuh vFkok ifr ls gksxkA
¼10½ e`rd vkfJr ds :i esa lsok;kstu ds fy, U;wure vk;q lhek tSlk fd lacaf/kr lsok lEoxZ ds lsok fu;eksa esa fofgr gS] gksxhA
4&
Jh jkT;iky mRrj izns'k csfld f'fk{kk vf/kfu;e] 1972 ¼mRrj izns'k
vf/kfu;e la[;k&34] lu 1972½ dh /kkjk&13 dh mi/kkjk ¼1½ ds varxZr
;g vkns'k nsrs gSa fd mi;qZDr fu.kZ; ds vuqlkj dk;Zokgh lqfuf'pr dh
tk;A
5& ;g vkns'k fnukad 08-01-1999 ls izHkkoh ekuk tk;sxkA
6&
;g vkns'k] foRr foHkkx ds v'kkldh; la[;k&vkbZ0,Q0,0&2&1490
@nl@2000] fnukad 29-08-2000 esa izkIr mudh lgefr ls fuxZr fd;s tk jgs
gSaA
Hkonh;
¼,u0 jfo'kadj½
lfpoA"
On the parameters of
the provisions quoted and discussed above, the case in hand is being
looked into. Each one of the petitioners, claims to have been appointed
in consonance with the Government Order dated 04.09.2000. In the said
Government Order a specific provision has been provided therein that all
those incumbents who fulfill the requisite educational qualification,
but do not have training qualification, they can move application for
grant of compassionate appointment and the said incumbent would be
offered appointment and shall be sent for training of B.T.C. course in
the respective District Institutes of Education and Training, and after
they successfully complete the training, they would be offered
appointment on regular basis. However, in case an incumbent fails to
pass the aforesaid examination, his candidature would automatically
stand cancelled and he would be offered appointment on class IV post and
his claim may also be considered for appointment against class III post
as per the exigency.
The moot question before this Court is that
when the provisions of the Right of Children to Free and Compulsory
Education Act, 2009 have been enforced and necessary eligibility
criteria has been fixed for being appointed as a teacher in the
institutions defined under Section 2 (n) of the said Act, then as to
whether appointment of an untrained person as teacher is feasible or
not? by invoking the provisions of relaxation in the matter of
compassionate appointment.
The Right of Children to Free and
Compulsory Education Act, 2009 has been enforced with effect from 27th
August 2009 in the belief that the value of equality, social justice,
democracy and creation of just a humane society can be achieved only
through the elementary education to all. The provisions of the Right of
Children to Free and Compulsory Education Act, 2009 also aims at
including the children from disadvantaged group and weaker sections to
get education, in consonance with the provisions of Article 21A of the
Constitution. Apart from dealing with the right of children to free and
compulsory education and making of special provision in the said
direction, the Parliament has taken care of the fact that the teachers
who are there to impart education, they should have also certain
qualification for being appointed, and in view of this clear cut mandate
has been made under Sub-section (1) of Section 23 of the said Act, that
person possessing such minimum qualification as laid down by the
academic authority authorized by the Central Government by notification,
shall be eligible for being appointed as teacher. Sub-section (2) of
Section 23 of 2009 Act gives liberty to the State Government to collect
data of the adequacy of the institutions offering courses of training
education, and in case teachers possessing minimum qualifications are
not available in sufficient number, requesting Central Government to
relax the minimum qualification required for appointment as a teacher,
for such period not exceeding five years, as may be specified in the
notification. A proviso has also been added providing 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. Apex Court in the case of
State of U.P. vs. Bhupendra Nath Tripathi, 2010 (3) SCC 238, apart from
holding that State can fix higher qualification, has taken the view that
proper training of teacher is integral aspect in effectuation of right
of education. Right conferred under Article 21A of the Constitution
would remain illusory in the absence of State taking adequate steps to
have required number of schools manned by efficient and qualified
teachers. Precise mention has been made that before teachers are allowed
to teach the children, they are required to receive appropriate and
adequate training from duly recognized training institute.
The
authority to fix minimum qualification has been out sourced by the
Central Government and the NCTE has been declared as authorized academic
authority to lay down minimum qualification for a person to be eligible
for being appointed as teacher. The N.C.T.E. in its turn has proceeded
to notify the educational qualification on 05.04.2010 as is required by
Section 23 (2) of the 2009 Act and different sets of minimum
qualifications have been provided for teachers for class I to V and
class VI to class VIII with requirement to pass T.E.T. to be conducted
by the appropriate Government in accordance with the guidelines framed
for the purpose. The T.E.T. as such has to be conducted by the State
Government. For the purpose of implementation of 2009 Act Rules have
also been framed known as U.P. Right of Children to Free and Compulsory
Education Rules, 2011 and the said Rules have been enforced with effect
from 27th July, 2011. Said Rules have been framed in supercession of all
existing rules and orders on the subject, and Rule 15 is clear that
minimum educational qualification for teachers laid down by an authority
authorized by the Central Government shall be applicable for all
schools referred to in clause (n) of Section 2. The State Government in
its turn on 07.09.2011 proceeded to authorize the Madhyamik Shiksha
Parishad to hold the T.E.T., and accordingly guidelines had also been
issued to be complied with for passing T.E.T. (Teacher Eligibility Test)
Under
the U.P. Basic Education Act 1972 and the Rules 1981. The qualification
required to be possessed by a teacher for appointment in a Primary
School is provided in Rule 8 of Rules 1981. This rule has undergone
amendments from time to time broadly. Initially it provides for a
qualification up to High School and training qualification like Basic
Teachers Certificate, Junior Teacher Certificate, Certificate of
Teaching etc. Later on amendments were made which basically increase
educational qualification of High School to Intermediate and then to
Graduation but so far as training qualification is concerned, the same
continue to be as such. For the first time, an amendment was made in
2004 by adding "Special Basic Teachers Certificate Course" as one of the
training qualification under Rule 8(1). Subsequently another amendment
came to be made by notification dated 25.11.2006 in Rule 8(1). In the
U.P. Basic Education (Teachers) Services Rules, 1981 also amendment has
been sought to be introduced on 09.11.2011 known as U.P. Basic Education
(Teachers) Services (Twelfth Amendment) Rules, 2011, and by means of
this amendment for a person to be appointed as teacher T.E.T. is a must.
Under
the U.P. Basic Education (Teachers) Service Rules, 1981, as amended
till date, there is no specific provision of compassionate appointment,
however, Rule 10 thereof talks of certain relaxations from the maximum
age limit, educational qualification or/and any procedural requirements
of recruitment in favour of the ex-servicemen, disabled military
personnel, dependents of military personnel dying in action, dependents
of Board's servants dying in harness and sportsmen, in accordance with
the general rules and orders of the Government in this behalf in force
at the time of recruitment. Thus, Rule 10 talks of relaxation, but the
same has to be in accordance with the general rules and orders of the
Government in this behalf in force at the time of recruitment.
Petitioners submit that Government Order dated 04.09.2000 is there, and
accordingly, rightful action has been taken by offering appointment as
untrained teacher.
In the present case factual situation which has so
emerged, is that under 2009 Act, it has already been provided under
Section 23 (1) for that only such persons shall be eligible for
appointment as teacher who possess such minimum qualifications as is
laid down by the academic authority authorized by the Central Government
by notification, and the academic authority to lay down minimum
qualification for appointment as teacher was the N.C.T.E. and the
N.C.T.E. in its turn has clearly proceeded to mention that before being
appointed as teacher apart from possessing minimum educational
qualification an incumbent has to pass T.E.T. and the State Government
was asked to conduct such test and the State Government in its turn had
authorized the Madhyamik Shiksha Parishad to hold such test. The minimum
qualification prescribed in notification dated 23.8.2010 are in two
parts, one for Junior Primary School namely Classes I to V and another
is for Senior Primary School i.e. Class VI to VIII. Besides educational
qualifications, for the first time, it also introduced eligibility
qualification of teacher i.e. Eligibility Test i.e. passing of Teachers
Eligibility Test (in short 'T.E.T.') conducted by concerned Government
in accordance with the guidelines laid down by NCTE. NCTE issued a
notification on 29.7.2011 in purported exercise of powers under Section
23 of 2009 Act. The aforesaid notification has amended notification
dated 23.8.2010. Sub-para (i) and (ii) of Para 1; para 3 and para 5 have
been substituted in entirety. Para 5 of notification dated 29.7.2011 is
a kind of saving clause and provides that if an advertisement
initiating process of appointment of teachers has already been issued
before 29.7.2011, such appointments may be made in accordance with NCTE
(Determination of Minimum Qualifications for Recruitment of Teachers in
Schools) Regulations, 2001 (as amended from time to time).
Sub para
(b) of para 5 provides that minimum qualification prescribed by
notification dated 29.7.2011 shall apply to all teachers except the
teacher for Physical Education, for which NCTE Regulation dated
03.11.2001, as amended from time to time, shall continue to apply.
Further regarding teachers of Art Education, Craft Education, Home
Science, Work Education, etc. the existing eligibility norms prescribed
by the State Government and other school managements shall be applicable
till such time the NCTE lays down the minimum qualification in respect
of such teachers. The above discussion makes it beyond doubt that the
above notifications issued by N.C.T.E. lays down minimum qualification,
which would make a person eligible for appointment as a teacher in
Primary Schools but the manner in which recruitment for appointment on
the post of teacher in Primary School shall be made, and, their terms
and conditions of service, for the same, aforesaid notification does not
provide anything at all and hence in this regard Rules 1981 shall hold
the field and would continue to apply. U.P. Right of Children to Free
and Compulsory Education Rules, 2011 is also there with effect from
27.07.2011. It clearly provides educational qualification for teacher to
be appointed in the institutions defined in clause (n) of Section 2,
and same is in supersession of all other Rules on the subject. Under
2009 Act and the Rules framed thereunder, minimum qualifications after
enforcement of the Act can be relaxed by the Central Government on the
recommendation of the State Government. The State Government ceases to
have any authority in the matter of relaxation of educational
qualification. Thus, once 2009 Act has come into force and the academic
agency authorized by it had already fixed the minimum educational
qualification, and U.P. Right of Children to Free and Compulsory
Education Rules, 2011 has been enforced, then the same are the general
rules and orders of the Government in force at the time of recruitment,
and the said provisions will have overriding effect and the other
earlier provisions under provincial legislation would sub serve the
same.
This Court in the case of Smt.Neera Devi vs. State of U.P.,
Civil Misc. Writ Petition No.7275 of 2011, decided on 05.12.2011 has
clearly taken similar view. Relevant extract of the said judgment is
being quoted below:
"2. Petitioner has sought a mandamus directing
the respondents to appoint him as Assistant Teacher even though he does
not acquire the requisite training qualification by referring Rule 10 of
the U.P. Basic Education (Teachers) Service Rules, 1981 which have been
framed under the U.P. Basic Education Act, 1972.
3. In my view no
such relief can be granted after enactment of Right of Children to Free
and Compulsory Education Act, 2009 (hereinafter referred to as "Act,
2009"). The Act 2009, vide Section 23 (1), provides that any person
possessing such minimum qualification, as laid down by an academic
authority authorised by the Central Government, by notification, shall
be eligible for appointment as a teacher. It reads as under:
"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."
4.
Since the provision does not contemplate appointment of a Teacher who
is not qualified as per Regulations of N.C.T.C., the provisions of
compassionate appointment earlier made even if permit unqualified
persons to be appointed in certain cases, cannot be followed after
framing of Regulations by Authorised Authority. In absence of a
statutory provision prior to Act, 2009, the provisions for compassionate
appointment permitting appointment of untrained persons could have been
complied with since the same had no occasion to infringe any other
statute having overriding effect but after Act, 2009 and Regulations
framed thereunder, the situation has undergone a sea change. It is not
disputed that National Council of Teachers Education has been notified
as Authorised Academic Authority under Section 23 (1) and the said body
has framed Regulations laying down minimum qualification and eligibility
conditions for appointment of Teachers in Primary Schools. In the light
of said provisions, which have been made under Act, 2009; the same have
overriding effect and, therefore, the otherwise provisions under
provincial legislation would sub-serve. I am, therefore, clearly of the
view that the relief, as sought in the writ petition, cannot be granted
in the above circumstances.
5. The writ petition is dismissed."
In
the present case each one of the petitioners had been offered
appointment after the said notification had been published by the
N.C.T.E. followed by U.P. Right of Children to Free and Compulsory
Education Rules, 2011 enforceable with effect from 27.07.2011. Rule 10
of the U.P. Basic Education (Teachers Service Rules, 1981 cannot be read
in isolation rather it has to be read in the context, it has been
provided for. It gives right of relaxation to ex-servicemen and certain
other categories, which is inclusive of compassionate appointment as
well, but the same has to be in accordance with the general rules and
orders of the Government in this behalf in force at the time of
recruitment. At the relevant time, N.C.T.E. had already declared
educational qualification for teacher to be appointed in school defined
under clause (n) of Section 2, which was required along with T.E.T. and
it was mandatory requirement. No person could have been treated to be
eligible for being appointed as teacher without passing the aforesaid
requisite qualification as was prescribed by the N.C.T.E. The 2009 Act
and the Rules framed thereunder were clear and categorical. The
appointments, which had been made prior to enforcement of the Act, were
saved, as the incumbents appointed were required to fulfill the
eligibility criteria within five years from the enforcement of the Act
and in other cases, there has to be specific order by the Central
Government on the request of the State Government, and in the present
case accepted position is that after enforcement of the Act, N.C.T.E.
Norms and U.P. Right of Children to Free and Compulsory Education Rules,
2011, petitioners had been appointed and in view of this relaxation as
has been provided for, could not have been accorded. The Government
Order in regard to compassionate appointment has been pressed in
flagrant violation of statutory provisions, and in view of this
Secretary of the Board on being apprised of this factual situation has
proceeded to remedy the situation by annulling such appointments which
were dehors the statutory provisions. Once appointment of the
petitioners was totally contrary to law not at all subscribed by law,
none of the petitioners were legally eligible and entitled to be
appointed as concept of untrained assistant teacher, is violative of
Article 21A of the Constitution as untrained teacher cannot be
recruited, as proper training of teacher is integral aspect in right of
education being effectuated. In view of this, the Secretary of the Board
has acted well within his right to direct cancellation of such
appointments, which were contrary to law in force on the date when they
had been recruited. Principle of natural justice has no role to play in
such matters, when appointments made are dehors the statutory
provisions, on admitted position, and it would be nothing more but
exercise in futility, as result would be one and the same, and quashing
of the order on this ground would be nothing but perpetuating the
illegality, i.e. permitting untrained teachers to continue.
Petitioners
have tried to submit that amongst untrained Assistant Teachers, two
classes have been created, as service of only those untrained Assistant
Teachers have been terminated, who have been appointed after 27.07.2011,
i.e., after enforcement of U.P. Right of Children to Free and
Compulsory Education Rules, 2011, and the services of untrained teachers
appointed prior to it have not been terminated. Negative equality
cannot be claimed, and said class of teachers are not before this Court,
either individually or collectively, as such this Court is not touching
this question and deciding and deciding the said question, and this
issue is left open to be decided in appropriate proceedings.
In view
of what has been discussed above, all the writ petitions are dismissed.
The claim of the petitioners be considered against existing class III/IV
vacancies except qua class III vacancies which are to be filled up by
way of promotion, preferably within next two months.
Order Date :- 25.7.2012
SRY
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