Rajasthan High Court - Jaipur
Aarti Bai vs State (Panchayati Raj Dep)Ors on 31 May, 2012
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Civil Writ Petition No.6060/2012 (Aarti Bai Versus State of Rajasthan & Ors.) AND S.B. Civil Writ Petition No.5198/2012 (Pawan Kumar Sharma Versus State of Rajasthan & Ors.) AND S.B. Civil Writ Petition No.7953/2012 (Mahesh Sharma Versus State of Rajasthan & Ors.) AND S.B. Civil Writ Petition No.5049/2012 (Sushil Versus State of Rajasthan & Ors.) Date of Order : 31st May, 2012 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Vigyan Shah ] Mr.Shobhit Twiari ] Mr.R.D.Meena ] Mr.D.S.Poonia ], for the petitioners. BY THE COURT:
By these writ petitions, a challenge is made to the action of the respondents for treating petitioners to be ineligible for the post of Teacher Gr.III. It is on the ground that they have not passed out Rajasthan Teacher Eligibility Test (for short RTET) ignoring the fact that petitioners passed out Central Teacher Eligibility Test (for short CTET), thus should have been held eligible for selection to the post of Teacher Gr.III.
It is submitted that after amendment in the constitution making elementary education as a fundamental right, Union of India came with the legislation namely Right of Children to Free and Compulsory Education Act, 2009 (for short Act of 2009). Section 23 of the Act of 2009 provides about qualification for appointment and terms & condition of service of teachers. As per Sub-section 1 of Section 23 of the Act of 2009, the Central Government is given powers to authorize academic authority to lay down minimum qualification. As per the aforesaid provision, the Central Government issued a Notification authorizing the National Council for Teacher Education (for short NCTE) as academic authority to prescribe minimum qualification for appointment of teachers. The NCTE accordingly issued a Notification on 23rd August, 2010 providing minimum qualification for appointment of teachers. The said Notification divides teachers at two levels, i.e., Level I and Level II. As per the qualification given therein, one is required to pass TET to be conducted by the appropriate government in accordance with the guidelines of the NCTE. The NCTE issued an order on 11th February, 2011 directing all the appropriate governments to conduct TET. Para 10 of the order dated 11th February, 2012 is relevant for the controversy involved in the present matters. It provides that TET conducted by the Central Government shall apply to all the schools referred in Sub-clause (i) (a)of Section 2 of RTE Act. Para 10 (b) talks about the TET conducted by a State Government/UT, however, below clause (b), it is provided that in case State Government/UT with legislature does not conduct TET then that State may consider TET conducted by the Central Government. According to the petitioners, TET conducted by the Central Government and passed out by the petitioners fulfill required condition of eligibility as notified on 23rd August, 2010 by NCTE and otherwise, guidelines for TET issued on 11.02.2011. The respondents, however, acting contrary to the aforesaid by treating petitioners to be ineligible for want of RTET ignoring the qualification of CTET possessed by the petitioners.
Learned counsel for the petitioners have given reference of Notification dated 29th July, 2011 to indicate that modification in the eligibility also provide that TET should be passed out by a candidate, which is to be conducted by an appropriate government in accordance to the guidelines and herein, appropriate government is Central Government, thus passing out CTET should be taken in sufficiency of requirement of eligibility. The petitioners may not accordingly be debarred from selection. The writ petitions may be allowed with the direction to the respondents to treat all the petitioners as eligible as they are in possession of qualification of CTET.
I have considered the submissions made by learned counsel and scanned the matter carefully.
Following controversy has been raised for my consideration:
Whether a candidate having passed out CTET can be declared ineligible for the post of Teacher Gr.III at Level I and Level II in State of Rajasthan, if he has not qualified RTET.
To answer the question framed above, it would be necessary to go in the background about the requirement of teaching eligibility test, as all the petitioners are those, who had passed out CTET with required marks but are not in possession of RTET. To answer the question framed, following facts are material in order of event:
(i)By a constitutional amendment, right to education was made as fundamental right.
(ii)To make free and compulsory education to all the children at the age of 6 to 14 years Right of Children to Free and Compulsory Education Act, 2009 was enacted by Parliament in the year 2009.
(iii)Section 23(1) of the Act of 2009 gives powers to the Central Government to issue Notification authorizing an academic authority to prescribe minimum qualification of teachers.
(iv)Under Section 23(1) the Central Government issued Notification on 05.04.2010 authorizing NCTE as academic authority to prescribe minimum qualification.
(V) The NCTE issued Gazette Notification on 23rd August, 2010 to provide minimum qualification of teachers as per Section 23(1) of the Act of 2009. The aforesaid Notification requires TET as one of the condition for required qualification.
(VI) On 10.02.2011, the NCTE issued guidelines for TET.
(VII) On 11.05.2011, the State Government made amendment in Panchayat Rules, 1996 to provide required qualification of Teachers at Elementary Level I and Level II.
(VIII) The NCTE then issued Notification on 29.07.2011 to modify earlier Notification dated 23.08.2010. The State of Rajasthan authorized Board of Secondary Education to hold RTET, which was conducted in the year 2011 followed by declaration of result.
(IX) The respective Jila Parishads issued advertisement in the month of February, 2012 for selection to the post of Teacher Gr.III at Level I and Level II.
The dates given above show relevant events taken place from time to time, however, it needs elaboration to answer the questions framed by this Court.
As per the Act of 2009, minimum qualification for the post of Teacher is to be provided by academic authority to be notified by Central Government. In the light of the aforesaid provision, the Central Government issued Notification on 05.04.2010 authorizing the NCTE to provide minimum qualification. Pursuant to authority given to the NCTE, it issued Notification on 23rd August, 2010, which provides TET as required qualification for the post of Teacher at Level I and II. By the amendment in the said Notification on 29.07.2011, following substitution was made, which is quite relevant and important to decide controversy, thus it would be gainful to quote it for ready reference:
And
(b) Pass Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose.
As per the amended Notification of NCTE for required qualification to the post of Teacher Gr.III, one is required to pass TET to be conducted by the appropriate Government. The case of petitioners is that Central Government should be reckoned as appropriate Government as they have passed out eligibility test so conducted by the Central Government. Thus, the word appropriate Government gets importance. The word appropriate Government has been defined under the Act of 2009 and is relevant, as the minimum qualification is provided as per Section 23 of the aforesaid Act, thus it would be gainful to quote definition of appropriate Government as given under Section 2(a), which reads as under:
(a) "appropriate Government" means
(i) in relation to a school established, owned or controlled by the Central Government, or the administrator of the Union territory, having no legislature, the Central Government;
(ii) in relation to a school, other than the school referred to in sub-clause (i), established within the territory of (A) a State, the State Government;
(B) a Union territory having legislature, the Government of that Union territory;
The perusal of definition given above reveals that in relation to a school established, owned or controlled by the Central Government, or the administrator of the Union territory, having no legislature, the Central Government. So far as other schools are concerned, other than the school referred to in sub-clause (i), established within the territory of a State, the State Government; and for a Union territory having legislature, the Government of that Union territory.
In the case in hand, the appointment of teachers is not in schools established, owned or controlled by the Central Government so as to fall under Section 2(a)(i) but it is a case which falls under Rule 2(a)(ii), thus as per the Notification dated 29th July, 2011 issued by the NCTE, a candidate is eligible for appointment to the post of Teacher Gr.III, if passed out TET conducted by appropriate Government, which in the present matter is State of Rajasthan, as all the schools are owned, controlled by the State Government through Panchayat Department.
In the aforesaid background, the petitioners have wrongly taken Central Government to be appropriate Government for appointment on the post of Teacher Gr.III in those schools established and controlled by the State Government. The argument aforesaid goes contrary to the provisions, thus cannot be accepted.
Learned counsel for the petitioners have further placed reliance of para 10 of the Guidelines issued by the NCTE on 11th February, 2012. The aforesaid Guidelines is for TET to be conducted by the appropriate Government. Para 10 of the Guidelines has been referred, rather emphasized for its application. Thus, it is quoted hereunder for ready reference:
10.(a) TET conducted by the Central Government shall apply to all schools referred to in sub-clause (i) of clause (a) of Section 2 of RTE Act.
(b) TET conducted by a State Government/UT with legislature shall apply to:
(i)a school of the State Government/UT with legislature and local authority referred to in sub-clause (i) of clause (n) of section 2 of the RTE Act; and
(ii)a school referred to in sub-clause (ii) of clause (n) of section 2 of the RTE Act in that State/UT.
A school at (i) and (ii) may also consider eligibility of a candidate who has obtained TET Certificate awarded by another State/UT with legislature. In case a State Government/UT with legislature decides not to conduct a TET, a school at (i) and (ii) in that State/UT would consider the TET conducted by the Central Government.
(c) A school referred to sub-clause (iv) of clause (n) of Section 2 of the RTE Act may exercise the option of considering either the TET conducted by the Central Government or the TET conducted by the State Government/UT with legislature.
The perusal of para 10(i) clarifies that TET conducted by the Central Government shall apply to the schools referred in sub-clause (i) of clause (a) of Section 2 of the RTE Act, i.e., the definition of appropriate Government, which does not include schools controlled by the State Government in the aforesaid sub-clause.
Para 10(b) of the Guidelines shows that TET conducted by the State Government shall apply to a school of the State Government in local authority referred to sub-clause (a) of clause (n) of Section 2 of the Act of 2009 apart from sub-clause (ii) of clause (n) of Section 2 of the Act of 2009. Sub-section 2(n) provides definition of school wherein again the word appropriate Government gets significance.
Learned counsel for the petitioners have laid much emphasis in regard to para below 10(b)(ii), which provides in first part that a school at I and II of Para 10 may also consider candidates to be eligible, who have obtained TET Certificate from another State/UT with legislature. Second part of this clause further provides that in case of State/UT with legislature decides not to conduct a TET, a school at (i) and (ii) in that State/UT would consider TET conducted by the Central Government.
There are two parts of the para and first applies where the TET passed out from a State/UT can be considered as eligible by other State. This does not apply to this case as petitioners have not passed out TET from other State/UT. Second part pertains to those, who have passed out TET conducted by the Central Government. The aforesaid applies when State Government/UT with legislature decides not to conduct TET. A discretion is then given to those State/UT to consider TET conducted by the Central Government. In the instant case, the State of Rajasthan has already conducted TET, thus question to decide not to hold TET does not arise in the present matters so as to further discussion to consider candidates to be qualified if passed out CTET. In fact, no such decision has been place on record.
In the aforesaid background, relevant part of clause 10 of Guidelines has no application in the present matters and thus of no help to the petitioners.
Sub-clause (C) of para 10 has not been referred by the petitioners as it does not apply to government schools but applies to unaided schools not receiving grant in aid. If guidelines referred to above is looked into, discretion to allow CTET as a qualification lies only in two circumstances. (1) If the State Government takes a decision not to hold TET and (2) in case of first eventuality above, a decision is taken to consider CTET. In the present case, both the grounds are missing so as to apply clause 10(b) of the Guidelines issued by the NCTE on 11th February, 2011.
Apart from discussion made above, fact further remains that guidelines cannot be override statutory provisions.
The Notification dated 29.07.2011 requires passing out TET conducted by the appropriate Government and as the definition of appropriate Government has already been referred and in the instant case, it is being the State of Rajasthan. According to the provision, one is qualified for the post of teacher in the State of Rajasthan if a candidate has passed out RTET. A candidate passed out CTET conducted by Central Government cannot be considered eligible in violation of the Gazette Notification issued by the NCTE on 29.07.2011, which has not even has been challenged, rather a challenge to the aforesaid can be made before the Division Bench only.
The issue is further required to be focused in reference to the amendment in Panchayat Rules, 1996. Rule 266 of Rules of 1996 has been amended vide Gazette Notification dated 11.05.2011 and as per aforesaid rule, one should be in possession of required qualification as prescribed by NCTE under Section 23(1) of the Act of 2009. The NCTE has provided required qualification by first issuing the Notification on 23.08.2010 followed by amendment on 29.07.2011. The Notification dated 29.07.2011 requires TET conducted by appropriate Government, which in the present matters is State Government of Rajasthan, thus a candidate not in possession of RTET cannot be said to be eligible for selection to the post of Teacher Gr.III at Level I and Level II. In fact holding them to be eligible would be in violation of the statutory provisions.
In the light of the discussion made above, I do not find any merit in the writ petitions, hence, the same are dismissed so as the stay applications.
(M.N. BHANDARI), J.
Preety, Jr.P.A. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Preety Asopa Jr.P.A