UPTET : TET is mandatory to Become Teacher even for SBTC 2008 Candidates
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment reserved on 25.7.2013 Judgment delivered on 20.08.2013
1. SPECIAL APPEAL NO.29 OF 2013
Ashok Kumar and others vs. State of UP and others
Connected with
2. SPECIAL APPEAL NO.2155 OF 2012
Fagoo Ram and others vs. State of UP and others
3. SPECIAL APPEAL NO.2160 OF 2012
Brijesh Kumar Gautam & ors vs. State of UP and others
4. SPECIAL APPEAL NO.166 OF 2013
Shiv Prasad and others vs. State of UP and others
5. SPECIAL APPEAL NO.187 OF 2013
Jitendra Kumar and others vs. State of UP and others
6. SPECIAL APPEAL DEFECTIVE NO.1058 OF 2012
Pradeep Kumar and others vs. State of UP and others
7. SPECIAL APPEAL DEFECTIVE NO.1059 OF 2012
Mahesh Prasad Saroj and another vs. State of UP and others
8. SPECIAL APPEAL DEFECTIVE NO.128 OF 2013
Asharam and others vs. State of UP and others
9. SPECIAL APPEAL DEFECTIVE NO.414 OF 2013
Keshav Prasad and others vs. State of UP and others
10. SPECIAL APPEAL DEFECTIVE NO.566 OF 2013
Vijay Kumar and others vs. State of UP and others
11. SPECIAL APPEAL DEFECTIVE NO.692 OF 2013
Bijay Singh and others vs. State of UP and others
Hon'ble Sunil Ambwani, J.
Hon'ble Surya Prakash Kesarwani, J.
1.
We have heard Shri Ashok Khare, Senior Counsel assisted by Shri Vishnu
Shanker Gupta for the appellants. Shri Vishnu Pratap appears for the
State respondents.
2. The appellants in this batch of intra-Court
Special Appeals seeking admission to Special B.T.C. Course 2008 are
aggrieved with short order passed by learned Single Judge dated 4.7.2012
in Writ Petition No.25714 of 2012 and other writ petitions, by which he
has, on an affidavit filed by the Director, S.C.E.R.T. informing the
Court that the process of recruitment to Special B.T.C. Course 2008
shall be positively closed on or before 31.7.2012, issued an order
directing all the Principals of DIETs, that the result of the
counselling, which has been completed, shall be declared on or before
31.7.2012, and thereafter, neither any counselling shall be done nor any
admission will be made to Special BTC Course, 2008.
3. Shri
Ashok Khare, learned counsel appearing for the appellants states that
3877 seats for Special BTC Course 2008, and 2531 seats for general
selections to BTC Course 2008, are still lying vacant. All the
petitioners-appellants are graduates with B.Ed qualification. They had
applied in response to advertisements to fill up 10,084 seats in Special
BTC Course 2008; 18301 seats for general selections in BTC Course 2008
and for 8878 seats as balance of the year 2007, totalling 37,263 seats.
Out of these, 30855 candidates (15085 for Special BTC 2008 and 15770 for
general selection 2008) were selected, of which results were declared
for 17,262 seats in Special BTC Course 2008 and 12,995 for general
selections in BTC 2008 seats, totalling 30257 seats. In this manner the
vacancies on 6408 posts are still lying vacant. He submits that the
directions issued by learned Single Judge challenged in these Special
Appeals for closing admission process to Special BTC Course 2008, has
not only deprived the petitioners of an opportunity of selection for
appointment as teachers in Primary Schools in the State of UP, but will
also result in wastage of 6408 seats.
4.
The
recruitment for the post of teachers in Junior Basic Schools/Senior
Basic Schools is made through direct recruitment at the level of
Assistant Teacher of Junior Basic Schools, with appointment on higher
post being made by way of promotion from amongst such Assistant Teachers
of Junior Basic Schools. The recruitment of As
sistant
Teachers at entry level is governed by the provisions of U.P. Basic
Education Teachers Service Rules, 1981, under which the appointment is
made of the candidates possessing qualifications specified in the rules
and which includes Basic Teacher's Certificate. The Basic
Teacher's Certificate (BTC) is a two years training course, admission to
which is made by an entrance examination conducted at the level of the
State Government. After successful completion of two years' training,
the candidates are entitled for appointment as Assistant Teachers. The
admission to BTC Course is not made every year. The irregular admissions
and shortage of the training Colleges resulted into shortage of
teachers in primary schools in the State of UP. The number of candidates
to be admitted to BTC Course in District Institutes of Education and
Training (DIET) is limited to about 100 or 200 seats available in
individual DIET every year, which cannot fulfill the requirement of the
appointment on the vacancies which accumulated to more than one lakh
posts.
5. The State Government took a decision in the year 1998,
for making selections for six months special training course referred to
as Special BTC Course and on successful completion thereof by the
candidates who possess other teacher's qualification like B.Ed, L.T.
Training certification, Diploma in Physical Education and Bachelor of
Physical Education. On successful completion of training such candidates
were granted appointment as Assistant Teachers in Junior Basic
Education run by the Basic Education Board.
6. Despite admission
to Special BTC Course in the years 1998, 2004 and 2007 a large number of
vacant posts continued to exist in the State. In the year 2007 the
State Government forwarded a proposal to National Council for Teachers
Education (NCTE) for permission to hold Special BTC training course. The
National Council for Teacher Education by order dated 20.9.2007 granted
permission of training of additional 28,385 candidates for primary
teachers apart from the permission already given with regard to 60,000
such additional candidates, thereby totalling 88,385 seats.
7. In
pursuance to the permission granted by the NCTE dated 29.9.2007 the
State Government issued a Government Order dated 14.11.2008 notifying
admission to BTC Course 2008 and Special BTC Course 2008 (special
recruitment) for filling up 28,385 posts of Assistant Teachers. The
advertisements were issued inviting applications from candidates
possessing other teacher's training qualification like B.Ed, LT training
certificate, Diploma in Physical Education and Bachelor of Physical
Education for selections for admission to six months Special BTC course
with ultimate objectives for grant of appointment as Assistant Teachers.
No restriction was imposed with regard to the number of districts for
which a candidate could apply so that each of the applicant had applied
for consideration for such admission in several districts in the State.
8.
On the basis of applications received from time to time cut of
aggregate of percentage was notified for admission to different batches
of Special BTC Training Course 2008 to be conducted in several rounds
comprising of three months theory classes in DIET and three months
practical classes in the institute itself.
9. It is stated that
despite several rounds of such training a large number seats for Special
BTC Course 2008 and General Selections of 2008 are still vacant in the
State. Several vacancies, which were required to be filled up from
amongst reserved category candidates belonging to science category, were
converted to arts category on account of non-availability of candidates
under science category.
10. It is submitted that by the impugned
orders passed without giving any reasons at all the process has been
abruptly closed leaving these vacancies unfilled and thereby violating
petitioners' rights, who were otherwise qualified, to be considered for
selection for training and for appointment.
11. A counter
affidavit of Shri Ashok Kumar Chaurasia, Professor, State Institute of
Science Education, Research and Training, Allahabad has been filed on
behalf of State respondents stating that the process was initiated for
appointment of Assistant Teachers in Basic Schools in the State of UP
run by the UP Basic Education Board by issuing Government order dated
14.11.2008 for Special BTC Training 2008 (Special Selection) and Special
B.T.C. Training-2008 including 10,084 posts of Special BTC Training
2008 (Special Selection) and 18301 posts for Special BTC Training 2008.
Out of these 8878 seats of Special BTC Training 2007, could not be
filled up as sufficient number of Scheduled Caste/Scheduled Tribe/Other
Backward Classes candidates were not available. These seats were also
included in the selections. The selection was to be made from various
classes/categories of female/male and Arts/Science, providing for
reservation for Scheduled Caste, Scheduled Tribe and Other Backward
Castes. On account of non-availability of some categories, some of the
seats remained vacant on which by a partial modification of the
Government order dated 14.11.2008, a Government order dated 29.10.2009
and thereafter Government orders dated 4.3.2011 and 13.4.2011 were
issued in respect of Special BTC Course 2008. When the selections were
in process, a Writ Petition (PIL) No.19806 of 2011 (Ved Narain Payasi
and others vs. State of UP and others) was filed in which an order was
passed on the statement of Standing Counsel appearing for State
Government that the result of Special BTC Course 2008 has been finalised
and will be published in daily newspapers and on website. The
communication will also be sent to the successful candidates by
registered post. In view of that the Court directed the entire exercise
to be completed within two months.
12. It is further stated in
the counter affidavit that in the matter of Shri Bhupendra Nath Tripathi
the Supreme Court passed an order on 29.10.2010 directing the
candidates, who have obtained B.P.Ed from other States and the
directions issued by Full Bench on 13.8.2010 in Writ Petition No.3733 of
2009 (Jitendra Kumar Soni vs. State of UP and others) for making the
candidates with B.Ed degree from Jammu and Kashmir eligible for BTC
Training Course 2008, and on
account
of Government orders dated 4.10.2011 and the clarification issued on
21.10.2011 the selection process was in progress for such candidates and
for adjusting the candidates of Scheduled Caste/Scheduled Tribe/female
in Science category in SC/ST/ Female in Arts and Male in Arts category.
For these reasons the selection process could not be completed within
the time allowed by this Court within two months from 6.4.2011. The Writ
Petition (PIL) No.19806 of 2011 (Ved Narain Payasi and others vs. State
of UP and others) was disposed of on 6.4.2011. A Contempt Petition
No.4257 of 2011 (Ved Narain Payasi and others vs. Dinesh Chandra
Kanaujia, Director) was filed in which a counter affidavit has been
filed. The contempt petition is still pending.
13. It is further
stated in the counter affidavit, that in the meantime in Writ Petition
No.69672 of 2011 (Dinesh Kumar Yadav and others vs. State of UP and
others) by an order dated 22.12.2011 the Court directed the selection
process of Special BTC Course 2008 to be completed in another two
months. In the meantime, the legislative assembly elections were
announced and the Model Code of Conduct became operative from
24.12.2011, on which the selection process was stopped upto March, 2012.
Thereafter reminders were sent to District Institute of Education and
Training for complying with the orders of the High Court in Dinesh Kumar
Yadav vs. State of UP (supra). Since the orders could not be complied
with, directions were issued for personal appearance of the officers
unless they comply with the order. Finally on 23.5.2012 directions were
issued by the Court summoning the officers to show cause as to why the
process has not been completed within the time granted by the High
Court. On 3.7.2012 the Secretary, Basic Education Board, UP and
Director, State Educational Research and Training Board personally
appeared in contempt matter and filed an affidavit in which he informed
the Courts that the recruitment to Special BTC Course 2008 shall be
positively closed on or before 31.7.2012 and on which the Court passed
an order on 4.7.2012, which has been challenged in this Special Appeal.
14. On 24.1.2013 the Court passed an order in Special Appeals as follows:-
"We have heard the parties at length.
State
may file a counter affidavit to the affidavit supporting the stay
application in this appeal within two weeks positively. Apart from
replying to as many paragraphs as may be possible within this short
period of two weeks, the Director S.C.E.R.T. will also specify in the
counter affidavit as to whether, if the impugned order dated 4.7.2012
had not been passed by the learned Single Judge and the Director had to
taken his own independent decision for closing the counselling, what
decision he would have taken and why.
As requested by both sides, list this case for further hearing in the week commencing 11thFebruary, 2013."
15.
In response to the query the State of UP has given a reply that since
the candidates applied in accordance with the Government Orders in more
than one districts, the applications received for 20-30 times the number
of seats. The select list issued after verifying the qualifications in
each districts issued several times, still the seats remained vacant as
the time scheduled was revised from time to time on account of the
orders passed by the High Court and Supreme Court making the candidates,
who had passed B.Ed examination from outside the State and from Jammu
and Kashmir eligible in the selections. It is stated in the counter
affidavit filed in these Special Appeals that so far as Special BTC
Course 2007 is concerned, the seats could not be filled up despite
issuing seven lists on which selection process was closed on 11.12.2008.
Some of the candidates, who had applied in Special BTC Course 2007
challenged the closure of the proceedings. In Special Appeal No.1772 of
2009 (Pravesh Kumar and others vs. State of UP and others) this Court
upheld the directions issued by the State Government on 11.12.2008 to
close the selection process observing:- "It was the State Government to
have decided the extent to which the merit was to be lowered in the
selections and to stop the counselling. The number 7 may not a rational
or any reason in it except the fact that seven rounds of counselling was
more than sufficient chances, which could be given to the candidates in
a selection. The process had to come to an end at some point of time,
without compromising with merits. The State Government in its reply in
response to the orders passed by this Court on 24.1.2013 has taken a
stand that even if the order dated 4.7.2012 was not passed directing the
selection process for Special BTC Course 2008 to be closed, considering
the facts that despite several select lists being issued the candidates
did not appear for selection and seats remained vacant, the Director
SCERT, UP would have recommended the State Government to close the
selection process for Special BTC Course 2008.
16. Shri Ashok
Khare, Senior Counsel appearing for the petitioners-appellants, who have
been given leave to file these appeals, states that there is no
rational behind a decision to close the selection process leaving 6408
seats vacant, depriving the petitioners-appellants and many other
eligible persons from selection, when there are still thousand of
vacancies lying vacant in the primary schools in the State of UP. He
submits that apart from the rights of the primary school students under
Article 21-A of Constitution of India; and the enactment of Right of
Children to Free and Compulsory Education Act, 2009, the rights of
petitioners have also been seriously affected by closing the process of
selections.
17. We do not find any arbitrariness or irrationality
in the decision taken by the State respondents to close the proceedings
of selection of Special BTC Course 2008 on the ground that despite
several rounds of counselling and conversion of the seats reserved for
SC/ST/OBC for Females in Science category to SC/ST/OBC Female and Male
candidates in Arts category, the seats could not be filled up due to
non-appearance of the candidates notified in respective lists. It is
also not advisable for the State Government to wait indefinitely to fill
up the posts in any one selection. In State of Haryana vs. Subhash
Chander Marwaha 1997 AIR SC 2216 and State of UP and others v. Rajkumar
Sharma and others (2006) 3 SCC 330 it was held that a writ of mandamus
can be issued only to perform a legal duty, which the statute imposes
upon the authorities. Since there is no legal duty on the State
Government to fill up all the advertised vacancies, the petitioners do
not have any right to these unfilled vacancies, and thus the action of
the State Government in such case cannot be treated to be arbitrary or
unreasonable.
18. In the present case, apart from the reasons
given for closing the selections we also find that in the meantime the
Parliament has enacted Right of Children to Free and Compulsory
Education Act, 2009, under which the National Council for Teachers
Education has been notified and declared as the Competent Authority. In a
notification issued by the State Government dated 23.8.2010 the
Teacher's Eligibility Test (TET) has been prescribed as the
qualification for Primary School Teachers and has been made compulsory
for appointment for all candidates. I
n
view of this notification dated 23.8.2010 issued by the Central
Government, it is no longer permissible for the candidates, who have
passed B.Ed examination or had completed any special course or bridge
course to apply and be eligible for appointment as Assistant Teachers in
Primary Schools run by the UP Basic Education Board unless they have
passed TET examinations. The TET Examination 2011 was held
and that the candidates, who have passed the examination, are being
appointed in pursuance to the advertisement issued by the State
Government.
19. In Civil Misc. Writ Petition No. 12908 of 2013
(Shiv
Kumar Sharma Vs. State of U.P. & others) and other connected writ
petitions, a Full Bench of this Court considered the question, 'as to
whether the Teachers' Eligibility Test is a test for qualification' and
held as follows:
"The questions that have been therefore framed by us are answered as follows:-
1.
The teacher eligibility test is an essential qualification that has to
be possessed by every candidate who seeks appointment as a teacher of
elementary education in Classes 1 to 5 as per the notification dated
23.8.2010 which notification is within the powers of the NCTE under
Section 23(1) of the 2009 Act.
2. Clause 3(a) of the
notification dated 23.8.2010 is an integral part of the notification and
cannot be read in isolation so as to exempt such candidates who are
described in the said clause to be possessed of qualifications from the
teacher eligibility test.
3. We approve of the judgment of the
division bench in Prabhakar Singh's case to the extent of laying down
the interpretation of the commencement of recruitment process under
Clause 5 of the notification dated 23.8.2010 but we disapprove and
overrule the ratio of the said decision in relation to grant of
exemption and relaxation from teacher eligibility test to the candidates
referred to in Clause 3 (a) of the notification dated 23.8.2010, and
consequently, hold that the teacher eligibility test is compulsory for
all candidates referred to in Clause 1 and Clause 3 (a). 20.
In view of the above discussion, we do not find that the directions
issued by learned Single Judge to put the selection process for Special
BTC Course 2008 to close by 31.7.2012, require any interference in
appeals. Learned Single Judge has in his brief order after considering
the entire facts and circumstances relying upon the affidavit of the
Director, SCERT, Allahabad has issued directions, which are neither
arbitrary nor illegal. Every recruitment has to come to an end at some
point of time. With the change in the scenario after enforcement of the
Right of Children to Free and Compulsory Education Act, 2009, and the
prescription of Teachers' Eligibility Test as qualification for applying
for the posts of Assistant Teachers in Primary School, which has also
been incorporated under the UP Basic Education Teachers Act, 1981, it is
no
longer possible for the Court to issue directions to the State
Government to fill up all the seats of Special BTC Course 2008, and to
continue to appoint the Assistant Teachers in Primary Schools on the
basis of such qualifications indefinitely. 21. All the Special Appeals are dismissed.
Dt. 20.08.2013
RKP/
