Syed Shakeb Ashraf And 3 Ors. vs State Of U.P. Thru Prin.Secy.Deptt.Of ... on 13 April, 2017

[Cites 34, Cited by 1]

Allahabad High Court

Syed Shakeb Ashraf And 3 Ors. vs State Of U.P. Thru Prin.Secy.Deptt.Of ... on 13 April, 2017

The petitioners herein have challenged an order passed by the Basic Education Officer, Faizabad dated 15.11.2016 declining to approve payment of salary to them under Section 13-A of the Junior High School Payment of Salary of Teachers and others Employees Act, 1978 on the ground that the prescribed procedure for selection and appointment was not followed by the Management and without the petitioners' fulfilling the requisite educational and training qualifications as also Teacher Eligibility Test (For short ''TET') they were illegally appointed, therefore, the claim for salary is unjustified. In this regard he has also referred to the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as ''Right to Education Act, 2009').

As regards the applicability of the Right to Education Act, 2009 is concerned, the opposite parties have not disputed in the impugned order that the Institution, namely, AIT College, Jaganpur, Faizabad is a Minority Educational Institution, therefore, in view of the pronouncement of the Supreme Court in the case of Pramati Educational and Cultural Trust and others Vs. Union of India and others reported in AIR 2014 SC 2114, the said Act is not applicable to such institutions and to this extent the order impugned is erroneous. It can also not be disputed that after upgradation of the school in question from a Junior High School to High School, the salary of teachers and staff upto the Junior High School level i.e. the level upto which it is aided, is payable under Section 13-A of the Junior High School Payment of Salary of Teachers and Other Employees Act, 1978 (hereinafter referred to as ''the Act, 1978'). It can also not be disputed that after such upgradation a Junior High School looses its identity and is to be treated as a recognized High School. However, the fact that the teachers of the institution are now teachers of the High School, does not mean that the prerequisites for selection and appointment of teachers for teaching Classes- VI to VIII prescribed by a Central enactment and Regulations made thereunder, as in this case, is to be done away with, the contention of the learned counsel for the petitioner as also the learned counsel for the Management as aforesaid and the reliance placed by them upon various decisions in this regard, namely, Smt. Manju Awasthi and others Vs. State of U.P. and others reported in 2013 (3) ADJ 64 (DB); State of U.P. and Others Vs. District Judge, Varanasi and Others reported in 1981 UPLBEC 336 (FB); Dr. (Smt.) Sushila Gupta Vs. The Joint Director of Education, Kanpur and others reported in 2006 (1) ALJ 523; Sri Krishna Dixit Vs. District Basic Education Officer, Jaunpur and others; Civil Misc. Writ Petition No. 14612 of 2003 decided on 09.01.2007, wherein, it has been held that consequent to upgradation such Schools are to be governed by the provisions of the U.P. Intermediate Education Act, 1921 etc. and selection and appointment of Teachers and Head Masters is also to be made as per the said provisions and not the provisions contained in the Basic Education Act, 1972 or Rules made thereunder, is not much of help to the petitioners for reasons discussed hereinafter. In Manju Awasthi's case (supra) the question was payment of salary to teachers and staff of upgraded High School and not qualifications applicable, therefore, the National Council For Teacher Education Act, 1993 (hereinafter referred to as ''the Act, 1993') as amended in 2011 was neither cited nor considered by the Division Bench. Likewise the said Act was not considered in the other judgments referred above.

As far as applicability of the Right to Education Act, 2009 is concerned, the petitioner being a Minority Educational Institution, subject of course to their being any dispute in this regard, the said Act would not apply to it, otherwise, by virtue of Section 23 thereof the qualifications prescribed for appointment would apply in the case of Teachers to be appointed for teaching Classes- VI to VIII, even if, the School in question is a High School or Intermediate College, as, the Right to Education Act, 2009 is not School centric but child centric and specially in view of the object sought to be achieved as also the definition of elementary education contained in Section 2(f), the definition of ''School' contained in Section 2(n), Section 23 thereof laying down the qualifications for appointment as a teacher and other provisions contained therein, specially as, it is a central enactment and ''Education' figurers in the concurrent list. Such applicability of the Right to Education Act, 2009 was not considered in any of the judgments referred herein above.

The recital contained in the order of the Basic Education Officer as to the non fulfillment of the educational and training qualifications as also TET, even though, it may have been mentioned in the context of the Right to Education Act, 2009, which is not applicable to the institution in which the petitioners are alleged to have been selected and appointed, but, irrespective of it, TET as also other qualifications laid down by the National Council for Teachers Education Act, 1993 are very much applicable to such institutions in view of the Act No. 18 of 2011 by which the National Council for Teachers Education Act, 1993 has been amended. Prior to it the said Act as held by the Supreme Court in Basic Education Board, U.P. Vs. Upendra Rai; Appeal Civil No. 8034 of 2001 did not cater to educational institutions such as primary, upper primary school etc., applied only to teachers training institutions, but subsequently, comprehensive amendments have been made in 2011 whereby even the long title of the Act has been amended, consequently, after the words ''in the Teacher Education System' the words ''including qualifications of School Teachers' have been inserted, meaning thereby, the said Act now professes to achieve the objective of laying down qualifications of School Teachers also. To further this cause further amendments have been made in Section 1 after sub-section (3) wherein the following sub-section 4 has been inserted:-

"(4) Save as otherwise provided in this Act, the provisions of this Act shall apply to-

(a) institutions;

(b) students and teachers of the institutions;

(c) schools imparting pre-primary, primary, upper primary, secondary or senior secondary education and colleges providing senior secondary or intermediate education irrespective of the fact, by whatever names they may be called; and

(d) teachers for schools and colleges referred to in clause (c)."

While the term institutions, students and teachers of the institutions contained in Clause-(a) and (b) of Sub-section 4 may not apply in view of the definitions contained in the Act, 1993. Clause- (c) and (d) clearly and fully apply to the present case, as, they bring about a sea change in the scheme of the Act, 1993 by empowering the NCTE and making the Act applicable even to schools imparting pre-primary, primary, upper primary, secondary or senior secondary education and colleges providing senior secondary or intermediate education irrespective of the fact, by whatever names they may be called and to teachers for Schools and Colleges referred to in Clause-(c), whereas earlier it was applicable only with regard to the teachers education.

Thus, now, consequent to the aforesaid amendment, the Act, 1993 has two fold application. One for teachers training institutions and the other laying down of qualifications for school teachers at various levels referred therein. This legal position did not exist at the time when the Full Bench judgment and other judgments referred herein above and relied upon by the petitioner, were pronounced.

Moreover, the NCTE Act is a Central Enactment and ''Education' being in the concurrent list at entry No. 25 of the VIIth schedule to the Constitution of India, in the event of any conflict between a Central Enactment such as the Act, 1993 as amended by Act 18 of 2011 and a State enactment, such as, the U.P. Intermediate Education Act, 1921 or the Act, 1982 etc. it is the former which will prevail to the extent the field is occupied by it and the latter will have to give way to the former accordingly in view of Article 245 , 246 , 254 of the Constitution of India.

In fact the Court finds that the U.P. Intermediate Education Act, 1921 (hereinafter referred to as ''the Act, 1921'), though initially it prescribed qualifications, such as, CT, BTC, JTC etc. for teachers of Classes VI to VIII but by the amendment dated 21.06.2012 in Regulation 1 of the Chapter-XII of the Regulations framed under the Act, 1921, the same have been done away with on account of the declaration of the CT Grade cadre as dying cadre, therefore, it was contended by Shri Irfan that now even for these classes the qualification is L.T. Grade, but, he failed to notice that prior to this, amendment the Act, 1993 had been amended in 2011, thereby, empowering NCTE to maintain standards of Education by laying down qualifications for various levels of Education/ Schools and in exercise of such powers the notification dated 12.11.2014 was issued in this regard, thus, whatever may have been the position in the interregnum, at least from 12.11.2014, if not prior to it, the vacuum has been filled by the said notification and the qualifications prescribed therein are mandatory. Prior to it the notification dated 23.08.2010 was in force but it did not apply to minority Educational Institution as per Act, 1921. In view of the special Central Enactment 1993 which will prevail over a State Act as regards qualifications of teachers is concerned, such qualifications have to be in consonance with those prescribed in the regulations made by NCTE in exercise of powers conferred by it by the amending Act 18 of 2011 as referred herein above and also by the insertion of Section 12A in it, which reads as under:-

"12A. For the purpose of maintaining standards of education in schools, the Council may, by regulations, determine the qualifications of persons for being recruited as teachers in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate school or college, by whatever name called, established, run aided or recognised by the Central Government or a State Government or a local or other authority:

Provided that nothing in this section shall adversely affect the continuance of any person recruited in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate schools or colleges, under any rule, regulation or order made by the Central Government, a State Government, a local or other authority, immediately before the commencement of the National Council for Teacher Education (Amendment) Act, 2011 solely on the ground of non-fulfilment of such qualifications as may be specified by the Council:

Provided further that the minimum qualifications of a teacher referred to in the first proviso shall be acquired within the period specified in this Act or under the Right of Children to Free and Compulsory Education Act, 2009."

The aforesaid Section 12A leaves no doubts as to the scope of the Act, 1993 as also the empowerment of the National Council for Technical Education to determine the qualifications of persons for being recruited as teachers in any pre-primary, primary, upper primary, secondary etc., schools and colleges by whatever name called.

The second proviso of Section 12A also makes it clear that the minimum qualifications of a teacher referred to in the first proviso shall be acquired within the period specified in this Act or under the Right of Children to Free and Compulsory Education Act, 2009, thus, the application of Section 12A is not dependent upon the Right to Education Act, 2009 and it has application independent of it also in view of the amending Act, 18 of 2011, as, otherwise there was no need to mention that such qualifications shall be acquired within the period specified in this Act i.e. the Act, 1993 as amended in 2011. Further more, an amendment has also been inserted in Section 32 in sub-section (2), after Clause (d) in the Act, 1993 dealing with power of the Council to make regulations by inserting the following Clause:-

"(dd) the qualifications of teachers under Section 12A;"

Thus, the applicability of the Act, 1993 and the qualification determined under the Regulations made by the Council to the institution in question which is a secondary school, can not be doubted, as, the NCTE is empowered to make the regulations in respect of the qualifications of teachers of such institution also and it will prevail over a State enactment to the contrary, if any.

In support of the aforesaid view being taken by this Court reference may also be made to the statement of objections and reasons for the amending Act, 18 of 2011, which reads as under:-

"STATEMENT OF OBJECTS AND REASONS The National Council for Teacher Education Act, 1993 has been enacted to provide for the establishment of a National Council for Teacher Education with a view to achieving planned and co-ordinated development of teacher education system in the country and the regulation and proper maintenance of norms and standards in the said system and for matters connected therewith.

2. Clause (d) of section 12 of the aforesaid Act empowers the Council to lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognised institutions. The object of this provision is to ensure quality of teachers, and thereby, teaching in schools uniformly across the country. In pursuance of this provision, the Council has framed Regulations which are binding on all State Governments in the matter of appointment of school teachers.

3. The Hon'ble Supreme Court in the case of Basic Education Board, U.P. vs Upendra Rai and others [Appeal (Civil) 8034 of 2001] has held that the Act does not deal with educational institutions like primary schools, etc. Hence, the qualifications for appointment as teacher in the ordinary educational institutions like the primary schools cannot be prescribed under the aforesaid Act, and the essential qualifications are prescribed by the local Acts and Rules in each State.

4. The purpose of regulating the teacher education system is to ensure quality of teachers in the education system. In view of the aforesaid judgment, the minimum qualification for appointment of teachers in schools laid down by the Council has become redundant.

5. In the circumstances, it is considered necessary to amend the Act to clarify that the Act applies to schools, school teachers and the minimum qualifications for appointment of school teachers, so as to have uniform standards of teacher in schools in the country.

6. The Bill seeks to achieve the above objects.

New Delhi;					KAPIL SIBAL
 
The 12th March, 2010."

The above quoted statement of objects and reasons makes it clear that the aforesaid amending Act was necessitated on account of the judgment of the Supreme Court rendered in the case of Basic Education Board, U.P. Vs. Upender Rai and others; Appeal (Civil) No. 8034 of 2001, wherein, it had been held that the Act does not deal with the educational institutions like primary schools etc., hence, the qualifications for appointment as teachers in the ordinary educational institutions like the primary schools cannot be prescribed under the aforesaid Act, and the essential qualifications are prescribed by the local Acts and Rules in its State. Thus, after the amendment in the Act, 1993 the legal position has changed. Earlier the Act, 1993 catered only to Teachers Training Institutions and not to various levels of education/ Schools, but, now it does.

It is not out of place to mention that the correctness of the judgment rendered in Upendra Rai's case (supra) was doubted in Irrigineni Venkata Krishna and others Vs. Government of Andhra Pradesh and another reported in (2010) 1 UPLBEC 338 and the matter was referred for consideration by a three judge Bench on two questions of law framed by it which included the applicability of the NCTE Act regarding laying down guidelines in respect of the minimum qualifications for a person to be employed as a teacher other than in Teachers Training Institutions. During the pendency of the reference, Parliament enacted the National Council for Teacher Education (Amendment) Act, 2011 (Act No. 18 of 2011).

In view of the amending Act, the Bench of three learned judges of the Supreme Court while deciding the reference on the correctness of the view in Upendra Rai observed that during the pendency of the appeal, the amending Act, 2011 had been enacted as a result of which the questions which were referred to a Larger Bench had become academic and did not require any answer, meaning thereby, now the Act was applicable in respect of laying down of minimum qualifications for employment as teacher to institutes other than Teachers Training Institutes. This aspect of the matter also fell for consideration before a Full Bench of this Court in the case of Ram Surat Yadav and others Vs. State of U.P. and others reported in (2014) 1 UPLBEC 1, wherein also the binding effect of the NCTE Act and the Regulations made thereunder was reiterated. The earlier Full Bench in Shiv Kumar Sharma and others Vs. State of U.P. and others reported in (2013) 6 ADJ 310 (FB), wherein also the same view has been taken, was also referred. Further more, a Division Bench of this Court in Special Appeal Defective No. 130 of 2014 also took the same view albeit in the context of Basic Education Schools but the principle and analogy referred in the aforesaid judgments as to the applicability of the NCTE Act and Regulations and their binding nature are applicable on all its fours to the present case also.

It is not out of place to mention that Section 12 of the Act, 1993 speaks of laying down of guidelines in respect of minimum qualifications which gives an impression that these guidelines would not be mandatory, however, one should not loose sight of the fact that apart from it a specific provision i.e. Section 12A was inserted by the Act 2011, as also Clause (dd) to Sub-section (2) of Section 32 has been separately added which refers to "the qualifications of teachers under Section 12-A" as distinct from Clause (d) which is in respect of the norms, guidelines and standards in respect of the minimum qualifications for a person to be employed as teacher under clause (d) of Section 12, thus Clause (d) of Section 12 and Section 12A are separate and distinct. The Regulations of 2014 vide notification dated 12.11.2014 have not been made under Section 12(d), but, under Section 12A read with Section 32(dd), therefore, they are not in the nature of guidelines especially as they lay down the minimum qualifications i.e. essential qualifications. Section 12A applies not only to Elementary Education but also to other levels of educations, therefore, the reference to acquisition of minimum qualifications within a period stipulated under the Act, 1993 is applicable to such levels also and on a reading of Section 12A quoted herein above there is no doubt that on making of regulations by NCTE determining the qualifications for being recruited as teachers in pre-primary, primary, upper primary, secondary or intermediate school or college they would have to be mandatorily followed and as per 1st and 2nd proviso to it the penal consequences of non fulfillment are also implicit therein which protect the continuance of only those already appointed and requires such qualification to be acquired by such appointments which corroborates the above view. In this context the use of the words minimum qualifications in the second proviso to Section 12A and the use of words ''Power of council to determine minimum standards of educations read with the Regulations made thereunder demonstrate that what is to be determined by NCTE is ''minimum qualifications' meaning thereby other qualifications in addition to these can very well be prescribed by local Act or laws but the minimum qualification which is essential and mandatory was necessarily to be fulfilled.

The Act, 1993 does not make any distinction between minority and non minority educational institutions as regards its applicability. Prescription of a qualification for appointment as a teacher does not in any manner encroach upon the protection available under Article 30(1) of the Constitution of India, in fact, the Intermediate Education Act, 1921 and Regulation made thereunder also lay down such qualifications which are applicable to minority institutions also and the D.I.O.S. while approving the appointment of teachers in such institutions is required to ascertain whether they are qualified. Such provision in fact further the object of Act 30(1) as it provides for better qualified teachers thereby promoting excellence of Minority Educational institution also.

Now, coming to the Regulations framed by the NCTE under the Act, 1993. After coming into force of the Right to Education Act, 2009 the NCTE issued a notification dated 23.08.2010 in exercise of its powers conferred under Sub-section (1) of Section 23 of the said Act but as already mentioned herein above the said Act is not applicable to Minority Educational Institutions in view of the pronouncement in of the Supreme Court in Pramati's case (supra), therefore, the said notification dated 23.08.2010 as also amendments therein from time to time are ipso facto not applicable to the institution where the petitioners have been appointed, however, having said so, the Court finds that a separate notification has been issued by the NCTE on 12.11.2014 in exercise of powers under Clause (dd) of sub-section 2 of Section 32 read with Section 12A of the Act, 1993 in supersession of the earlier regulations 2001 except as respects things done or omitted to be done before such supersession. This notification is under the amended provisions inserted in the Act, 1993 by the amending Act, 18 of 2011 as already referred and quoted herein above, therefore, its application is independent of the Right to Education Act, 2009 and the notification issued thereunder. As per Regulation (1) these Regulations may be called the National Council for Teacher Education (Determination of Minimum Qualifications for persons to be recruited as Education Teachers and Physical Education Teachers in Pre-primary, Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges) Regulations, 2014. Regulation 2 of Regulations, 2014 categorically provides that these regulations shall be applicable for recruitment of teachers and physical education teachers in any recognized school imparting pre-primary, primary, upper primary, secondary, senior secondary or intermediate schools or colleges imparting senior secondary education. The explanation to the said provision further defines ''the terms school'. As the opposite party no. 6- educational institution receives grant-in-aid up to the Junior High School from the State Government it is covered under the said definition, therefore, the said regulations apply to it also. Regulation 2 of the Regulation, 2014 reads as under:-

"2. Applicability-

These Regulations shall be applicable for recruitment of teachers and Physical Education Teachers in any recognized school imparting Pre-primary, Primary, Upper Primary, Secondary or Senior Secondary or Intermediate Schools or Colleges imparting senior secondary education:-

Explanation:- For the purpose of this regulation, the term "School" includes-

(i) A school established, owned and controlled by the Central Government, or the State Government or a local authority;

(ii) A school receiving aid or grants to meet whole or part of its expenses from the Central Government or the State Government or a Local Authority;

(iii) A school not receiving any aid or grants to meet whole or part of its expenses from the Central Government of the State Government or a Local Authority."

Regulation 4 deals with qualifications for recruitment and Clause (a) provides that the qualifications for recruitment of teachers in any recognized school imparting pre-primary, primary, upper primary, secondary, senior secondary or intermediate schools or colleges imparting senior secondary education shall be as given in the I and II Schedule(s) annexed to these regulations. Regulation 4 of the Regulations, 2014 reads as under:-

"4. Qualifications for Recruitment-

(a) The qualifications for recruitment of teachers in any recognized school imparting Pre-primary, Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges imparting senior secondary education shall be as given in the First and Second Schedule(s) annexed to these Regulations.

(b) For promotion of teachers the relevant minimum qualifications as specified in the First and Second Schedule(s) are applicable for consideration from one level to the next level."

The First Schedule referred in Regulation 4 of the Regulations, 2014 reads as under:-

"First Schedule {See Sub-regulation (2) of Regulation (4)} The National Council for Teacher Education (Determination of Minimum Qualification for Persons to be recruited as Education Teachers in Pre-primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges) Regulations, 2014.

LEVEL MINIMUM ACADEMIC AND PROFESSIONAL QUALIFICATIONS

1.Pre-School/Nursery (For children in the age group of 4.6 years)

2. Pre-School/ Nursery followed by first two years in a formal school.

a. (i) Senior Secondary (Class XII or its equivalent) from recognized board with at least 50% marks Or

(ii) Senior Secondary (Class XII or its equivalent) from recognized board with at least 45% marks in accordance with the National Council for Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002 And;

b. Diploma in Nursery Teacher Education/Pre-School Education/Early Childhood Education Programme (D.E.C.Ed.) of duration of not less than two years, or B.Ed. (Nursery) from National Council for Teacher Education recognized institution.

3. Primary and Upper Primary (For Classes I to VIII) Minimum qualifications as laid down by National Council for Teacher Education vide its notification dated 23.08.2010 as amended from time to time issued in exercise of the powers conferred under Sub-section (1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009)

4. Secondary/ High School (For Classes IX-X)

(a) Graduate/Post Graduate from recognized University with at least 50% marks in either Graduation or Post Graduation (or its equivalent) and Bachelor of Education (B.Ed.) from National Council for Teacher Education recognized institution.

(b) Graduate/Post Graduate from recognized University with at least 45% marks in either Graduation or Post Graduation (or its equivalent) and Bachelor of Education (B.Ed.) from National Council for Teacher Education recognized institution {in accordance with the National Council for Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002 and National Council for Teacher Education (Recognition Norms and Procedure) Regulation, 2007 notified on 10.12.2007.

5. Senior Secondary/ Intermediate (For Classes XI-XII)

(a) Post Graduate with at least 50% marks (or its equivalent) from recognized University and Bachelor of Education (B.Ed.) from National Council for Teacher Education recognized institution.

(b) Post Graduate with at least 45% marks (or its equivalent) from recognized University and Bachelor of Education (B.Ed.) from National Council for Teacher Education recognized institution {in accordance with the National Council for Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002 and National Council for Teacher Education (Recognition Norms and Procedure) Regulation, 2007 notified on 10.12.2007.

(c) Post Graduate with at at least 50% marks (or it equivalent) from recognized University and B.A.Ed./B.Sc.Ed. form any NCTE recognized institution.

The first schedule at serial no. 4 lays down the minimum academic qualifications for Classes- I to VIII, as, the minimum qualifications as laid down by the National Council for Teacher Education vide its notification dated 23.08.2010 as amended from time to time issued in exercise of the powers conferred under sub-section (1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009, thus, even though, the Right to Education Act, 2009 and the notification dated 23.08.2010 is not applicable to a Minority Educational Institutions on its own, but, on account of a separate notification dated 12.11.2014 , the notification dated 23.08.2010 has become applicable by incorporation by reference in view of the amending Act, 2011 of the Act, 1993 which applies even to Minority Educational Institutions as there is no provision in the said Act, 1993 excluding its applicability to such institutions. The minimum qualifications prescribed in the notification dated 28.03.2010 to be eligible for appointment as a teacher in Classes-VI to VIII, which is relevant to this case, are as under:-

"Classes VI-VIII

(a) B.A./B.Sc and 2- year Diploma in Elementary Education (by whatever name known) OR B.A./B.Sc. with at least 50% marks and 1-year Bachelor in Education (B.Ed) OR B.A./B.Sc. 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 BA/B.Sc. Ed. or B.A. Ed./B.Sc.Ed.

OR B.A./B.Sc. with at least 50% marks and 1- year B.Ed. (Special Education) AND (B) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose."

Thus, on a reading of the First Schedule, it is evident that separate qualifications are prescribed for various levels of school and classes right from Pre-Nursery to Senior Secondary. Thus, even if a school is upto Secondary Level (High School) or Senior Secondary (Intermediate) the qualifications for teachers at different levels will be different and it can not be said that a teacher qualified for being recruited for teaching Classes XI -XII i.e. Senior Secondary would also be qualified for being recruited for teaching lower classes such as Pre-School/ Nursery or Primary, Upper Primary or Secondary, as, the requirement/ teaching skills etc is different at different levels of education. To contend, as was done by Shri Irfran, that qualifications relate to schools and not levels of education i.e. if a school is a High School then all teachers being teachers of a High School the qualifications for teaching Secondary level will apply even if they are to teach Classes VI to VIII, does not appear to be correct, as, if this is accepted it will be contrary to the intent and object of the Act, 1993 and Regulations made thereunder specially the First Schedule.

It is not in dispute that the selections and appointments in question have taken place after the coming into force of the amending Act, 18 of 2011 and the issuance of the notification dated 12.11.2014, as, in the writ petition it has been categorically mentioned that the advertisement was issued for selection and appointment on 23.09.2015, therefore, such advertisement had to confirm to the minimum qualifications prescribed by the NCTE as aforesaid, which includes the passing of TET, which is also a qualification, a fact which is evident from a bare reading of the notification dated 23.08.2010 and the provisions of the Act, 1993, therefore, apparently the selections and appointments are dehors the provisions of law referred herein above.

It was contended by the learned counsel Shri Irfan and Mahendra Pratap Singh that TET (Teachers Eligibility Test) was merely an examination which had to be passed and it was not a qualification. If it is a test prescribed by an expert body, the NCTE, in exercise of statutory powers/ obligations imposed upon it by a Central enactment with an object of maintaining standards of Education (Section 12A) and is a minimum qualification i.e. an essential/ mandatory qualification i.e. a person qualfies for appointment as a teacher for teaching Classes VI-VII only on passing such a test, then, it is a qualification prescribed for recruitment and not merely a test, as is also evident from the Act, 1993 read with Regulations of 2014 and the notification dated 23.08.2010 referred/ incorporated therein. The Teachers Eligibility Test is to test the suitably of a candidate and is mandatory. The question whether TET was a qualification or not was considered by the Full Bench of this Court in the case of Shiv Kumar Shara (supra) and it was held to be a qualification thus, the contention is not tenable.

The minimum qualifications referred above in the Regulation and notification mean mandatory/essential qualification in addition to any higher qualification which a person may possess, thus, any qualification in addition to those prescribed by NCTE can be laid down as per law.

As regards the contention of Shri Syed Irfan Ahmad, learned counsel for the petitioners that the teachers of the High School possess the qualification of LT Grade which is a higher qualification, with respect, this contention can not be accepted for the reason that the relevant question herein is not as to whether the qualification is higher or lower, but, whether the petitioners fulfill the qualifications prescribed under Act, 1993 by an expert body i.e. the NCTE or not, as, it is trite that, one may possess a higher qualification, assuming it is so, yet may not be suitable for performing teaching at a particular level which may require a lesser qualification or a different skill. Reference needs to be made in this regard to the dictum of the Supreme Court in the case of P.M. Latha and Anr. Vs. State of Kerala and Ors. reported in (2003) 3 SCC 541, wherein a similar plea was raised based on the B.Ed. qualifications vis-a-vis T.T.C. (Trained Teacher Certificate) and it was held as under:-

"We find absolutely no force in the argument advanced by the respondents that B.Ed. qualification is a higher qualification than TTC and therefore, the B.Ed. candidates should be held to be eligible to compete for the post. On behalf of appellants, it is pointed out before us that Trained Teachers Certificate is given to teachers specially trained to teach small children in primary classes whereas for B.Ed. degree, the training imparted is to teach students of classes above primary. B.Ed. degree holders, therefore, cannot necessarily be held to be holding qualification suitable for appointment as teachers in primary schools. Whether for a particular post, the source of recruitment should be from the candidates with TTC qualification or B.Ed. qualification, is a matter of recruitment policy. We find sufficient logic and justification in the State prescribing qualification for post of primary teachers as only TTC and not B.Ed. Whether B.Ed. qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider B.Ed. candidates, for the present vacancies advertised, as eligible."

The same veiw was reiterated in Dilip Kumar Ghosh and Ors. Vs. Chairman and Ors. reported in AIR 2005 SC 3485 and Yogesh Kumar and others Vs. Government of NCT, Delhi and Ors. reported in (2003) 2 SCR 662.

In the Full Bench decision of this Court in Ram Surat Yadav (supra) wherein one of the candidates who possessed the qualification of L.T. claimed it to be a higher qualification than B.T.C./J.T.C. etc. for appointment in a High School, the contention was repelled in view of the Supreme Court decisions referred above. Thus, whether a qualification such as LT. as is being asserted by the petitioners, would qualify by itself for being eligible for recruitment as a teacher for Classes 6 to 8 even if other minimum qualifications such as TET are not fulfilled is an aspect which will have to be raised by the petitioners before the NCTE, as, it alone is competent for determining the minimum qualifications for teaching Classes- VI to VIII for which the petitioners claim to have been selected and appointed by the Management and it is not for this Court to do so. As far as the scheme of the Act the same has already been discussed earlier.

The qualification prescribed is related to level of education and not only to level of the School. Any other understanding or construction of the provision will lead to absurd results. In a Junior High School a TET qualified teacher will teach the students of Classes VI-VIII, but, in a High School a non TET teacher will do so. This is not the intent of the NCTE Regulation and the First Schedule quoted earlier, had it been so, it would have been clearly provided for. As stated earlier different levels of education require different skills and expertise as has been mentioned in the judgments of the Supreme Court referred earlier. By the logic suggested by Shri Irfan, in Secondary or Senior Secondary School a teacher possessing qualification for teaching Classes- X or XII would also be teaching Classes I to V or VI to VIII, if it was to be so, why the prescription of separate qualifications for different classes by NCTE vide the First Schedule, this aspect was not satisfactorily answered by the learned counsel. It is not out of place to point out that even Appendix I to Chapter- II of the Regulations made by the Intermediate Education Act, 1921 prescribed different qualifications for teachers of different levels such as Classes-VI to VIII, Class- Xth , Class- XIth to XIIth in consonance with the requirements of each level. As far as the the amendment of 21.06.2012, by which the qualifications prescribed for Class- VI to VIII have been deleted this aspect has already been dealt with in the earlier part of the judgment and for the reasons mentioned earlier the contention that the qualification for teaching these classes is also L.T. Grade is rejected as it will render the Act, 1993 and Regulations made thereunder nugatory.

Thus, the qualification as prescribed by the Act, 1993 as amended in 2011 are not fulfilled by the petitioners.

In view of this discussion, though, the reliance placed by the Basic Education Officer upon the Right to Education Act, 2009 for declining to approve payment of salary to the petitioners can not be sustained but the reference to lack of qualifications is sustained with reference to the Act, 1993 as amended in 2011. The order of the Basic Education Officer shall accordingly stand modified in terms of the aforesaid. The petitioners are not entitled to salary as claimed.

The writ petition is, accordingly, dismissed.

 
Order Date :- 13.04.2017
 
R.K.P.				                  (Rajan Roy,J.)

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