Himachal Pradesh High Court
Between vs State Of Karnataka (1992) 3 Scc 666 And In ... on 21 September, 2022
Bench: Tarlok Singh Chauhan, Virender Singh
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 21st DAY OF SEPTEMBER, 2022.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE VIRENDER SINGH
r to
CIVIL WRIT PETITION No.1773 OF 2020
ALONG WITH CIVIL WRIT PETITION
NOS.3132, 3597, 4420 OF 2019,
2305,2306 OF 2020 AND CIVIL WRIT
PETITION (ORIGINAL APPLICATION)
NOS. 7311 OF 2020.
1. CIVIL WRIT PETITION NO. 1773 OF 2020.
Between:-
SATISH KUMAR SON OF SH. DESH RAJ,
RESIDENT OF VILLAGE BADAHIN, POST
OFFICE KOT, TEHSIL BALDWARA,
DISTRICT MANDI, H.P.
.....PETITIONER.
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS PRINCIPAL SECRETARY
(EDUCATION) TO THE GOVERNMENT OF
HIMACHAL PRADESH.
2. DIRECTOR OF ELEMENTARY EDUCATION,
H.P., SHIMLA.
::: Downloaded on - 21/09/2022 20:05:39 :::CIS
2
3. DEPUTY DIRECTOR, ELEMENTARY
EDUCATION, MANDI, HIMACHAL
PRADESH.
.
4. NATIONAL COUNCIL FOR TEACHERS
EDUCATION (NCTE).
5. ROOP LAL, S/O SH. MAST RAM, R/O
VILLAGE MOTI, PO SOLDHA, TEHSIL
SADAR, DISTT. BILASPUR, H.P.
6. SHASHI PAL, S/O SH. DHANI RAM, R/O
VILLAGE GRROR, PO SOLDHA, TEHSIL
SADAR, DISTT. BILASPUR, HP.
7. PREM LAL, S/O SH. GHANTHA RAM, R/O
VILLAGE BAGGA, PO KANDHAR, TEHSIL
ARKI, DISTT. SOLAN,H.P.
8. ASHWANI KUMAR, S/O SH. MUNSHI RAM
SHARMA, R/O VILLAGE SANAN, PO
DOMEHAR, TEHSIL ARKI, DISTT.
SOLAN,HP.
9. JITENDER KUMAR S/O SH. BIHARI LAL,
R/O VILLAGE DEOTHI, PO THAILA, TEHSIL
SUNNI, DISTT. SHIMLA, H.P.
10. KARAM CHAND, S/O SH. BACHAL LAL,
R/O VILLAGE BELHI, PO SWARGHAT,
TEHSIL NALAGARH, DISTT. SOLAN, H.P.
11. DEEPAK SHARMA, S/O LATE SH. DHANI
RAM, R/O VILLAGE SUKHER, PO & TEHSIL
BALDWARA, DISTT. MANDI, H.P.
12. SOM DUTT, S/O SH. PARAM DEV, R/O
VILLAGE CHATTER RIDDLA, PO NAROLA,
TEHSIL BALDWARA, DITT. MANDI, H.P.
::: Downloaded on - 21/09/2022 20:05:39 :::CIS
3
13. BIAS DEV, S/O SH. NALWATRU RAM, R/O
VILLAGE BUSHILER, PO GARMA, TEHSIL
BALH, DISTT. MANDI, H.P.
.
14. GEETA NAND, S/O SH. ROSHAN LAL, R/O
VILLAGE DOH, PO REWALSAR, DISTT.
MANDI, H.P.
15. DHARAM CHAND, S/O SH. SHYAM DEV,
R/O VILLAGE SAMOH, PO GAHAR, TEHSIL
SARKAGHAT, DISTT. MANDI, H.P.
16. RAJESH KUMAR, S/O SH. HARI RAM, R/O
VILLAGE MAJHWAN, PO KALKHAR,
TEHSIL SARKAGHAT, DISTT. MANDI, H.P.
17. HIMACHAL PRADESH STAFF SELECTION
COMMISSION, HAMIRPUR, H.P.
18. YASHPAL SHARMA, S/O BHAJNA NAND
SHARMA, R/O VILLAGE KHALENTOO,
TEHSIL SHIMLA, DARBHOG (202),
SHIMLA, HP-171012.
19. PAWAN KUMAR S/O SH. NARAYAN DUTT,
R/O VILLAGE BAAG, PO DEOLA, TEHSIL
SUNNI, DISTRICT SHIMLA, H.P.
20. DINESH KUMAR S/O SH. MOHAN LAL, R/O
VILLAGE BHALANA, PO LANA-CHETTA,
TEHSIL NOHRADHAR, DISTRICT
SIRMOUR,HP-173104.
21. VIRENDER SINGH S/O SH. BABU RAM,
R/O VILLAGE BHENU, PO PARARA,
TEHSIL DADAHU, DISTRICT SIRMOUR,
HP-173001.
22. KESHAV DEV, S/O SH. SOM DUTT, R/O
VILLAGE CHANALOG, PO DINGER,
::: Downloaded on - 21/09/2022 20:05:39 :::CIS
4
TEHSIL PACHHAD, DISTRICT SIRMOUR,
HP-173001.
.
23. DEV PARKASH, S/O SH. ISHWAR DUTT
SHARMA, R/O VILLAGE KOTLA MONGAN,
PO KATHOLI BHARAN, TEHSIL RAJGARH,
DISTRICT SIRMOUR, HP-173101.
24. ASHWANI KUMAR, S/O SH. MANOHAR
LAL, AGED 32 YEARS, R/O VILLAGE
CHALAILA, PO SIDHPUR, TEHSIL
DHARAMPUR, DISTT. MANDI, HP (ROLL
NO.81300280).
25. RAVI KR. SHARMA, S/O SH. BABU RAM,
AGED 34 YEARS, R/O VILLAGE BANLI, PO
SEWRA CHANDI, TEHSIL ARKI, DISTT.
SOLAN, HP (ROLL No.813005090).
26. AMIT KUMAR S/O SH. KRISHAN CHAND,
AGED 37 YEARS, R/O VILLAGE
BALAKROPI, PO & TEHSIL
JOGINDERNAGAR, DISTT. MANDI, HP
(ROLL NO.813003229).
27. DHARMENDER KUMAR, S/O SH.
PITAMBER DUTT, AGED 33 YEARS, R/O
GORTHI NICHAI (152) KOT BEJA, TEHSIL
KASAULI, DISTT. SOLAN, HP (ROLL
No.813005323).
28. MANOJ KUMAR S/O SH. RADHE SHYAM,
AGED 26 YEARS, R/O VILLAGE SAURI,
BADDI, DISTT. SOLAN, HP (ROLL
NO.813004988).
29. AJAY SHARMA S/O SH. DEVI CHAND,
AGED 27 YEARS, R/O VILLAGE MATWAR,
PO JALARI, TEHSIL NADAUN, DISTT.
HAMIRPUR, HP (ROLL NO. 813001047).
::: Downloaded on - 21/09/2022 20:05:39 :::CIS
5
30. VIRENDER SINGH S/O SH. KEWAL RAM,
AGED 41 YEARS, R/O SATRUBARH,
SHAWAG, SHIMLA, HP (ROLL
.
NO.813003492).
31. HIRA LAL SHARMA, S/O SH. KHEM RAJ,
RESIDENT OF VILLAGE KAMMAND, POST
OFFICE DOHAD, TEHSIL ANI, DISTRICT
KULLU, HIMACHAL PRADESH.
32. ARUN SHARMA, S/O SH. SOM DUTT,
RESIDENT OF VILLAGE NAHARPAB,
POST OFFICE CHURWADHAR, TEHSIL
RAJGARH, DISTRICT SIRMOUR,
HIMACHAL PRADESH.
33. SATISH KUMAR, S/O SH. DINESHWAR
SHARMA, RESIDENT OF VILLAGE
PEOTHA, POST OFFICE SHALAGHAT,
TEHSIL ARKI, DISTRICT SOLAN,
HIMACHAL PRADESH.
34. VIKAS KUMAR, S/O SH. SATISH KUMAR,
RESIDENT OF VILLAGE DUDBAHLI, POST
OFFICE JAHU, TEHSIL NANKHARI,
DISTRICT SHIMLA, HIMACHAL PRADESH.
35. ANIL KUMAR, S/O SH. JAGDISH,
RESIDENT OF VILLAGE BATOL, POST
OFFICE SAHARAN, TEHSIL PACHHAD,
DISTRICT SIRMOUR, HIMACHAL
PRADESH.
36. OM PRAKASH, S/O SH. CHAMAN LAL,
RESIDENT OF VILLAGE BAHLIDHAR,
POST OFFICE & TEHSIL THUNAG,
DISTRICT MANDI, HIMACHAL PRADESH.
37. VIKASH SHARMA, S/O SH. VIRENDER
SINGH, RESIDENT OF VILLAGE
NAHARPAB, POST OFFICE
::: Downloaded on - 21/09/2022 20:05:39 :::CIS
6
CHURWADHAR, TEHSIL RAJGARH,
DISTRICT SIRMOUR, H.P.
.
38. PROMILA KUMARI, D/O SH. BHIM SINGH,
RESIDENT OF VILLAGE
BHATLONBHUJOND, TEHSIL RAJGARH,
DISTRICT SIRMOUR, HIMACHAL
PRADESH.
39. RAHUL SHARMA, S/O SH. LAIQ RAM,
RESIDENT OF VPO PABAN, TEHSIL
CHOPAL, DISTRICT SHIMLA, H.P.
40. PARMESH KUMAR SHARMA, S/O SH. LAL
SINGH, RESIDENT OF VPO PABAN,
TEHSIL CHOPAL, DISTRICT SHIMLA,
HIMACHAL PRADESH.
41. TIKA RAM S/O SH. CHET RAM, RESIDENT
OF VPO BHATGARH, TEHSIL RENUKJI,
DISTRICT SIRMOUR, H.P.
42. SUNIL KUMAR, S/O SH. JAGAR RAM,
RESIDENT OF VILLAGE THANDIDHAR,
TEHSIL RAJGARH, DISTRICT SIRMOUR,
HIMACHAL PRADESH.
43. SUMAN DEVI, W/O SH. LAIQ RAM,
RESIDENT OF VILLAGE GADLI, POST
OFFICE BHARANA, TEHSIL THEOG,
DISTRICT SHIMLA, HIMACHAL PRADESH.
44. BALAK RAM, S/O SH. JALAM SINGH,
RESIDENT OF VILLAGE KUHA, POST
OFFICE BAROT, TEHSIL SANGRAH,
DISTRICT SIRMOUR, HIMACHAL
PRADESH.
45. NAMIT KAPATIA, S/O SH. RAM KUMAR,
RESIDENT OF VPO DHALWARI, TEHSIL
AMB, DISTRICT UNA, H.P.
::: Downloaded on - 21/09/2022 20:05:39 :::CIS
7
46. MANOJ KUMAR, S/O SH. MOHINDER
KUMAR, RESIDENT OF VILLAGE
.
KINDDER, POST OFFICE BEHLI, TEHSIL
NIHRI, DISTRICT MANDI, HIMACHAL
PRADESH.
47. RAMESH, S/O SH. CHAIN LAL, RESIDENT
OF VILLAGE JADERA, TEHSIL & DISTRICT
CHAMBA, H.P.
48. SURYA PRAKASH, S/O SH. VED
PRAKASH, RESIDENT OF VPO
KHANIYARA, TEHSIL DHARAMSHALA,
DISTRICT KANGRA, HIMACHAL PRADESH.
49. CHANDER SHEKHAR, S/O SH. OM
PRAKASH, RESIDENT OF VILLAGE
CHALOG, POST OFFICE BAROG, TEHSIL
THEOG, DISTRICT SHIMLA, H.P.
50. AKSHAY KUMAR, S/O SH. DEVENDER,
RESIDENT OF VILLAGE NEHRA, POST
OFFICE RAJHANA, TEHSIL & DISTRICT
SHIMLA, HIMACHAL PRADESH.
51. ANU KUMARI, S/O SH. JARU RAM,
RESIDENT OF VILLAGE JAAR, POST
OFFICE KARHOTA, TEHSIL BHORANJ,
DISTRICT HAMIRPUR, HIMACHAL
PRADESH.
52. AMAR NATH, S/O SH. SADH RAM,
RESIDENT OF VILLAGE JABLI, POST
OFFICE PATRIGHAT, TEHSIL BALDWARA,
DISTRICT MANDI, HIMACHAL PRADESH.
53. MAMTA, D/O SH. GURUDEV, RESIDENT
OF VILLAGE NANDLA, POST OFFICE
JANGLA, TEHSIL CHIRGAON, DISTRICT
SHIMLA, HIMACHAL PRADESH.
::: Downloaded on - 21/09/2022 20:05:39 :::CIS
8
54. RIMA, D/O SH. CHAMAN LAL, RESIDENT
OF VILLAGE JARKOT, POST OFFICE
.
LAROT, TEHSIL CHIRGAON, DISTRICT
SHIMLA, HIMACHAL PRADESH.
55. JYOTI, D/O SH. PURAN DUTT, RESIDENT
OF VPO BAROG, TEHSIL THEOG,
DISTRICT SHIMLA, H.P.
56. RAVINDER SINGH, S/O SH. DHARAM
SINGH, RESIDENT OF VILLAGE
UNCHATIKKAR, POST OFFICE BARAH,
TEHSIL SANGRAH, DISTRICT SIRMOUR,
H.P.
57. ANKUSH SHARMA, S/O SH. SURESH
KUMAR, RESIDENT OF VILLAGE
KOHLUIN, POST OFFICE SANAHI, TEHSIL
NADAUN, DISTRICT HAMIRPUR, H.P.
58. JAGMOHAN, S/O SH. SHYAM LAL,
RESIDENT OF VILLAGE JANI, POST
OFFICE RAMNI, TEHSIL NICHAR,
DISTRICT KINNAUR, HIMACHAL
PRADESH.
59. SONU RAM, S/O SH. BANISHU RAM,
RESIDENT OF VILLAGE CHHAPRITHA,
POST OFFICE BHADIYUN KOTHI, TEHSIL
& DISTRICT CHAMBA, HIMACHAL
PRADESH.
60. SANJAY KUMAR, S/O SH. SHER SINGH,
RESIDENT OF VPO SAKOUT, TEHSIL &
DISTRICT KANGRA, H.P.
61. AJEET KUMAR, S/O SH. KIKAR RAM,
RESIDENT OF VILLAGE LOHANI, POST
OFFICECHANWHTA, TEHSIL BHARMOUR,
DISTRICT CHAMBA, HIMACHAL
PRADESH.
::: Downloaded on - 21/09/2022 20:05:39 :::CIS
9
62. RAJ KUMAR THAKUR, S/O SH. RELU RAM,
RESIDENT OF LORAN HOUSE NO. 267,
.
WARD NO.7, KULLU, DISTRICT KULLU,
HIMACHAL PRADESH.
63. NITISH BHARDWAJ, S/O SH. LEELA NAND
BHARDWAJ, RESIDENT OF VILLAGE
JATHAI, POST OFFICE CHEOT, TEHSIL
THEOG, DISTRICT SHIMLA, H.P.
64. SNEHA THAKUR, D/O SH. DEVI SINGH,
RESIDENT OF VILLAGE GADIARA, POST
OFFICE BHUTI, TEHSIL & DISTRICT
KULLU, HIMACHAL PRADESH.
65. AMAN SHARMA, S/O SH. JAGDISH
CHAND SHARMA, RESIDENT OF VILLAGE
CHALAILA, POST OFFICE SIDHPUR,
TEHSIL DHARAMPUR, DISTRICT MANDI,
H.P.
66. ASHISH SHARMA, S/O SH. NARENDER
SINGH, RESIDENT OF VILLAGE THUND,
POST OFFICE SATALAI, TEHSIL JUNGA,
DISTRICT SHIMLA, HIMACHAL PRADESH.
67. PAWAN KUMAR, S/O SH. PARAS,
RESIDENT OF VILLAGE BHADROHLU,
POST OFFICE MALOH, TEHSIL
SUNDERNAGAR, DISTRICT MANDI,
HIMACHAL PRADESH.
68. MANOJ KUMAR, S/O SH. MEHAR CHAND,
RESIDENT OF VILLAGE BANJAN, POST
OFFICE MANGOO, TEHSIL ARKI, DISTRICT
SOLAN, HIMACHAL PRADESH.
69. RAKESH SHARMA, S/O SH. KALTU RAM,
RESIDENT OF VILLAGE PANJOR, POST
OFFICE HALKAN, TEHSIL SHILLAI,
::: Downloaded on - 21/09/2022 20:05:39 :::CIS
10
DISTRICT SIRMOUR, HIMACHAL
PRADESH.
.
70. AJAY SHARMA, S/O SH. KESHVANAND,
RESIDENT OF VILLAGE RUMNJA CHINAR,
POST OFFICE CHALANA, TEHSIL
DADAHU, DISTRICT SIRMOUR,
HIMACHAL PRADESH.
......RESPONDENTS.
2. CIVIL WRIT PETITION NO.3132 OF 2019.
ANKUR RAINA, S/O SHRI TRILOK
CHAND RAINA, R/O WARD NO.4,
NAGAR PANCHAYAT, NADAUN, POST
OFFICE & TEHSIL NADAUN, DISTRICT
HAMIRPUR, H.P.
.....PETITIONER.
AND
1. STATE OF HIMACHAL PRADESH
THROUGH PRINCIPAL SECRETARY
(EDUCATION) TO THE GOVERNMENT OF
HIMACHAL PRADESH.
2. DIRECTOR, ELEMENTARY EDUCATION,
H.P., SHIMLA.
3. DEPUTY DIRECTOR, ELEMENTARY
EDUCATION, HAMIRPUR, H.P.
4. NATIONAL COUNCIL FOR TEACHERS
EDUCATION, G-7, SECTOR 10, DWARKA,
DELHI-110075.
.....RESPONDENTS.
3. CIVIL WRIT PETITION NO.3597 OF 2019.
SATISH KUMAR, SON OF SH. DESH RAJ,
RESIDENT OF VILLAGE BADAHIN, POST
::: Downloaded on - 21/09/2022 20:05:39 :::CIS
11
OFFICE KOT, TEHSIL BALDWARA,
DISTRICT MANDI, H.P.
....PETITIONER.
.
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS PRINCIPAL SECRETARY
(EDUCATION) TO THE GOVERNMENT OF
HIMACHAL PRADESH.
2. DIRECTOR OF ELEMENTARY EDUCATION,
H.P., SHIMLA.
3. DEPUTY DIRECTOR, ELEMENTARY
EDUCATION, MANDI, HIMACHAL
PRADESH.
4. NATIONAL COUNCIL FOR TEACHERS
EDUCATION (NCTE)
.....RESPONDENTS.
4. CIVIL WRIT PETITION NO. 4420 OF 2019.
1. SMT. REETA DEVI, AGED 30 YEARS, W/O
SHRI NARESH KUMAR, RESIDENT OF
VILLAGE KHARIYAN, POST OFFICE-
KALOL, TEHSIL JHANDUTTA, DISTRICT
BILASPUR, H.P.
2. SHRI RAVINDER KUMAR, AGED 39
YEARS, S/O SHRI SAILI RAM, RESIDENT
OF VILLAGE SERI, POST OFFICE KILAD,
TEHSIL & DISTRICT CHAMBA, (H.P.).
......PETITIONERS.
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ADDITIONAL CHIEF
::: Downloaded on - 21/09/2022 20:05:39 :::CIS
12
SECRETARY (EDUCATION) TO THE
GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA 171002 (H.P.).
.
2. DIRECTOR, ELEMENTARY EDUCATION,
LALPANI, SHIMLA-171001 (H.P.).
3. HIMACHAL PRADESH STAFF SELECTION
COMMISSION, HAMIRPUR, DISTRICT
HAMIRPUR (H.P.), THROUGH ITS
SECRETARY.
4. NATIONAL COUNCIL FOR TEACHERS
EDUCATION (NCTE).
r .....RESPONDENTS.
5. SH. RAVINDER SINGH, S/O LATE SH.
KHARKU RAM, RESIDENT OF V. & P.O.
DEVI DHAR, TEHSIL CHIRGAON,
DISTRICT SHIMLA (H.P.).
.....PROFORMA RESPONDENT.
5. CIVIL WRIT PETITION NO.2305 OF 2020.
I. VISHAL SINGH, SON OF SH. BALDEV
SINGH, RESIDENT OF VILLAGE AND
POST OFFICE SATAUN, TEHSIL
KAMRAU, DISTRICT SIRMAUR, H.P.
2. SATISH KUMAR, SON OF SH. LAYAK
SINGH, RESIDENT OF VILLAGE KANTI
MASHWA, TEHSIL KAMRAU, DISTRICT
SIRMAUR, H.P.
3. VINOD KUMAR SON OF LATE SH.
HIRDA RAM, RESIDENT OF VILLAGE
AND POST OFFICE KOTI DHIMAN,
TEHSIL RENUKA DISTRICT SIRMAUR,
H.P.
....PETITIONERS.
::: Downloaded on - 21/09/2022 20:05:39 :::CIS
13
AND
1. STATE OF HIMACHAL PRADESH
.
THROUGH ITS PRINCIPAL SECRETARY
(EDUCATION) TO THE GOVERNMENT OF
HIMACHAL PRADESH.
2. DIRECTOR OF ELEMENTARY EDUCATION,
H.P., SHIMLA.
3. DEPUTY DIRECTOR, ELEMENTARY
EDUCATION, SIRMAUR, HIMACHAL
PRADESH.
4. HIMACHAL PRADESH STAFF SELECTION
BOARD, BOARD HAMIRPUR, DISTRICT
HAMIRPUR,
r H.P., THROUGH ITS
SECRETARY.
.....RESPONDENTS.
6. CIVIL WRIT PETITION NO.2306 OF 2020.
I. SUNITA WIFE OF VINOD TOMAR
RESIDENT OF VILLAGE KOTI DHIMAN
TEHSIL RENUKA, DISTRICT SIRMAUR,
H.P.
II. MANJU CHAUHAN WIFE OF SH. VIKRAM
SINGH, RESIDENT OF VILLAGE AND
POST OFFICE SHILLAI, TEHSIL SHILLAI,
DISTRICT SIRMAUR.
III. RAJENDER SINGH SON OF SH. HIRA
SINGH, RESIDENT OF VILLAGE
KAMOTA, POST OFFICE KANDO-
BHATNAL, TEHSIL SHILLAI, DISTRICT
SIRMAUR, H.P.
....PETITIONERS.
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS PRINCIPAL SECRETARY
::: Downloaded on - 21/09/2022 20:05:39 :::CIS
14
(EDUCATION) TO THE GOVERNMENT OF
HIMACHAL PRADESH.
.
2. DIRECTOR OF ELEMENTARY EDUCATION,
H.P., SHIMLA.
3. DEPUTY DIRECTOR, ELEMENTARY
EDUCATION, SIRMAUR, HIMACHAL
PRADESH.
4. HIMACHAL PRADESH STAFF SELECTION
BOARD, BOARD HAMIRPUR, DISTRICT
HAMIRPUR, H.P., THROUGH ITS
SECRETARY.
r .....RESPONDENTS.
7. CIVIL WRIT PETITION(ORIGINAL
APPLICATION) NO.7311 OF 2020.
1. JAGJEET RANA, S/O SH. OM PRAKASH,
R/O VILLAGE DHANOT, P.O. ADHWANI,
TEHSIL JWALAMUKHI, DISTRICT
KANGRA, (HP).
2. SANJEEV KUMAR, S/O SH. RAMESH
CHAND, R/O VILLAGE & P.O. CHANOUR,
TEHSIL DADA SIBA, DISTRICT KANGRA
(HP).
3. GAURAV SHARMA, S/O SH. RAMESH
CHAND, R/O VILLAGE & P.O. CHANOUR,
TEHSIL DADA SIBA, DISTRICT KANGRA,
(HP).
4. VISHAL SHARMA, S/O LATE SH. BIPAN
KUMAR, R/O VILLAGE KOTLA, P.O.
JALARI, TEHSIL NADAUN, DISTRICT
HAMIRPUR (HP).
::: Downloaded on - 21/09/2022 20:05:39 :::CIS
15
5. SATISH KUMAR, S/O SH. DESH RAJ, R/O
VILLAGE DADIHIN, P.O. KOT, TEHSIL
BALDWARA, DISTRICT MANDI, (HP).
.
....PETITIONERS.
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS SECRETARY
(EDUCATION) TO THE GOVERNMENT OF
HP, SHIMLA-02 (HP).
2. DIRECTOR, ELEMENTARY EDUCATION,
LALPANI, SHIMLA-01 (HP).
3. DEPUTY DIRECTOR, ELEMENTARY
EDUCATION, HAMIRPUR, DISTRICT
HAMIRPUR, H.P.
4. DEPUTY DIRECTOR, ELEMENTARY
EDUCATION, KANGRA AT DHARAMSHALA
(HP).
5. DEPUTY DIRECTOR, ELEMENTARY
EDUCATION, MANDI, DISTRICT
MANDI,H.P.
.....RESPONDENTS.
MR. DEVENDER K. SHARMA, MR.
BHUVNESH SHARMA, Mr. RAMAKANT
SHARMA AND MR. ADARSH K.
VASHISTA, ADVOCATES, FOR THE
PETITIONER(S) IN THE RESPECTIVE
PETITIONS.
MR. ASHOK SHARMA, ADVOCATE
GENERAL WITH MR. VINOD THAKUR,
ADDITIONAL ADVOCATE GENERAL, MR.
YUDHBIR SINGH THAKUR, DEPUTY
ADVOCATE GENERAL AND MR. RAJAT
::: Downloaded on - 21/09/2022 20:05:39 :::CIS
16
CHAUHAN, LAW OFFICER, FOR THE
RESPONDENTS-STATE.
.
MR. B.NANDAN VASHISTH, ADVOCATE,
FOR THE RESPONDENT -NCTE.
MR. SURENDER KUMAR SHARMA,
MR. NEERAJ KUMAR SHASHWAT, MR.
VISHWA BHUSHAN, MR.AJEET SINGH
SAKLANI, MR. MUKESH SHARMA, MR.
ANIL BANSAL, AND MR. SANDEEP
CHAUHAN, ADVOCATES, FOR THE
PRIVATE RESPONDENTS, IN THE
RESPECTIVE PETITIONS.
MR. ANGREZ KAPOOR AND MR. SANJEEV
KUMAR MOTTA, ADVOCATES, FOR THE
RESPONDENT-HPSSC IN THE
RESPECTIVE PETITIONS.
________________________________________________________________
Reserved on : 25.08.2022.
These petitions coming on for hearing this day,
Hon'ble Mr. Justice Tarlok Singh Chauhan, passed the
following:
ORDER
Since, identical question of facts and law arises for consideration in these petitions, therefore, they were taken up together for hearing and are being disposed of by a common judgment.
2. The petitioners have qualified B.Ed. and have sought a direction to the respondents to fill-up the posts of ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 17 "Shastri Teachers" strictly in accordance with the norms as laid down by the National Council for Teacher Education .
(NCTE) in its Notification dated 29.07.2011 and not on the basis of the Notification issued by the State Government on 29.09.2020 which, according to them, is in violation of the instructions of the NCTE.
3. The State which had earlier conceded to the claim of the petitioners has now opposed the same on the basis of the records produced by the NCTE relating to the issuance of the Notification dated 29.07.2011.
4. It is now averred that the Notification dated 29.07.2011 issued by the NCTE is de hors the provisions of the Right of Children to Free and Compulsory Education Act, 2009, (for short "RTE Act"),more particularly, Section 23 thereof and, therefore, not binding on the State Government.
5. It is averred that the Ministry of Human Resource Development (MHRD) (Development of School Education and Literacy) in exercise of its powers as conferred under Sub-Section 29 of the RTE Act had authorized the NCTE as an "academic authority" to lay down the curriculum and ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 18 evaluation procedure for Elementary Education and to develop a framework of National curriculum under Clause .
(a) of sub-section (6) of Section 7 vide Notification dated 31.03.2010. Similarly, vide Notification of the same date, NCTE had been notified as an "academic authority". The NCTE had inserted B.Ed. qualification for Language Teacher merely on the direction of the MHRD without there being any independent application of mind by the NCTE.
6. To similar effect is the stand taken by the private respondents, who do not hold or possess the B.Ed. Degree.
7. Thus, what would be noticed from the discussion so far is that the sole controversy which arises for consideration in these petitions is whether the NCTE has correctly and legally included B.Ed. as an essential qualification for eligibility of appointment to the posts of "Shastri Teachers".
8. In order to appreciate the controversy, we may note in brief the factual background as well as the statutory framework.
9. Article 21A was inserted in the Constitution by Constitution (Eighty-sixth Amendment) Act, 2002 with effect ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 19 from 01.04.2010 which provides that the State shall provide free and compulsory education to all children of the age of 6 .
to 14 years in such manner as the State may, by law, determine. Long before the amendment of the Constitution and insertion of Article 21A, the right to primary education was recognized as a fundamental right being part of Article 21 by the Hon'ble Supreme court in the case of Mohini Jain vs. State of Karnataka (1992) 3 SCC 666 and in the case of Unni Krishnan J.P. vs. State of Andhra Pradesh (1993) 1 SCC
645. With the insertion of Article 21A, this right was recognized as an independent fundamental right in the Constitution.
10. To operationalize this valuable right, the Parliament framed the RTE Act. The term 'school' has been defined in Section 2(n) as to mean any recognized school imparting elementary education and would include the schools established, owned or controlled by the appropriate Government or a local authority, schools receiving aid and even unaided schools. Clause (g) of Section 8 of the RTE Act, pertaining to duties of appropriate Government, requires that the appropriate Government shall ensure good ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 20 quality elementary education conforming to the standards and norms specified in the Schedule. Section 18 requires .
compulsory recognition of all schools. Section 19 of the RTE Act pertains to norms and standards for school. Sub-section (1) of Section 19 provides that no school shall be established or recognized under Section 18, unless it fulfills the norms and standards specified in the Schedule. The Schedule lists the norms and standards for the schools imparting education for the classes-I to V. There are different prescriptions for the number of teachers for this section as compared to classes-VI to VIII.
11. Section 23 of the RTE Act pertains to qualifications for appointment and terms and conditions of service of teachers and 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, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher.::: Downloaded on - 21/09/2022 20:05:39 :::CIS 21
(2) Where a State does not have adequate institutions offering courses or 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 qualifications as laid down under sub- section (1), shall acquire such minimum qualifications within a period of five years:
[Provided further that every teacher appointed or in position as on the 31st March, 2015, who does not possess minimum qualifications as laid down under sub- section (1), shall acquire such minimum qualifications within a period of four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017.] (3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed."::: Downloaded on - 21/09/2022 20:05:39 :::CIS 22
12. As per sub-section (1) of Section 23, a person possessing such minimum qualifications as laid down by an .
"academic authority" authorised by the Central Government shall be eligible for appointment as a teacher. Sub-section (2) of Section 23, empowers the Central Government to relax such minimum qualifications under certain circumstances subject to conditions. We would make a detailed reference to this Section at a later stage.
13. Chapter-V of the RTE Act pertains to curriculum and completion of elementary education. Section 29 contained in the said part pertains to curriculum and evaluation procedure, and it reads as under:-
"29. Curriculum and evaluation procedure.--(1) The curriculum and the evaluation procedure for elementary education shall be laid down by an academic authority to be specified by the appropriate Government, by notification.
(2) The academic authority, while laying down the curriculum and the evaluation procedure under sub-section (1), shall take into consideration the following, namely:--::: Downloaded on - 21/09/2022 20:05:39 :::CIS 23
(a) conformity with the values enshrined in the Constitution;
.
(b) all round development of the child;
(c) building up child's knowledge, potentiality and talent;
(d) development of physical and mental abilities to the fullest extent;
(e) learning through activities, discovery and exploration in a child friendly and child-centered manner;
(f) medium of instructions shall, as far as practicable, be in child's mother tongue;
(g) making the child free of fear, trauma and anxiety and helping the child to express views freely;
(h) comprehensive and continuous evaluation of child's understanding of knowledge and his or her ability to apply the same."
14. Section 35 of the RTE Act is contained in Chapter-
VII of Miscellaneous provisions and reads under:-
"35. Power to issue directions.--(1) The Central Government may issue such guidelines to the appropriate Government or, as the case may be, the local authority, as it deems fit for the purposes of implementation of the provisions of this Act.
(2) The appropriate Government may issue guidelines and give such directions, as it deems ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 24 fit, to the local authority or the School Management Committee regarding .
implementation of the provisions of this Act.
(3) The local authority may issue guidelines and give such directions, as it deems fit, to the School Management Committee regarding implementation of the provisions of this Act."
15. Sub-section (1) of Section 35 of the RTE Act, as noted above, empowers the Central Government to issue such guidelines to appropriate Government or the local authority, as it deems fit for the purpose of implementation of the provisions of the Act. Under sub-section (2) of Section 35, the appropriate Government may issue guidelines and give directions, as it deems fit, to the local authority or the school management committee regarding implementation of the provisions of this Act. Under sub-section (3) of Section 35, the local authority may issue such guidelines and directions as it deems fit to the school management committee.
16. It is not in dispute that the Central Government has notified the NCTE as the "academic authority" for the purposes of sub-section (1) of Section 23 as well as sub-
::: Downloaded on - 21/09/2022 20:05:39 :::CIS 25section (1) of Section 29 of the RTE Act. In terms of sub-
section (1) of Section 23, thus, it is the NCTE which has the .
authority to prescribe the minimum eligibility qualifications for appointment as a teacher.
17. Likewise, the NCTE is authorised in terms of sub-
section (1) of Section 29 to lay down the curriculum and evaluation procedure for elementary education. It may be noted that the NCTE has been constituted under the National Council for Teacher Education Act, 1993 ( for short 'NCTE ACT'). In its original form, the preamble to the NCTE Act provided that it was an Act to provide for establishment of NCTE with a view to achieving planned and co-ordinated development of the teacher education system throughout the country, the regulations and proper maintenance of norms and standards in the teacher education system and for matters connected therewith.
18. By Amendment Act 18 of 2011 with effect from 01.06.2012 the words "including qualifications of school teachers" were inserted in the preamble.
::: Downloaded on - 21/09/2022 20:05:39 :::CIS 2619. Similar amendments were made in the Act and the applicability of the Act as provided in sub-section (4) of .
Section 1 of the NCTE Act, was expanded to schools imparting pre-primary, primary, upper primary education.
20. The functions of the NCTE as contained in Section 12 were expanded to include laying down of guidelines in respect of minimum qualifications for a persons to be employed as a teacher in recognized institutions.
21. Section 12A was inserted with effect from 01.06.2012, which provides that for the purpose of maintaining standards of education in schools, the NCTE 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 names called, established, run, aided or recognised by the Central Government or a State Government or a local authority or other authority.
First proviso, while protecting the existing teachers, was subject to further proviso, which provides that the minimum ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 27 qualifications of a teacher shall be acquired within the period specified in the NCTE Act or under the RTE Act.
.
22. Section 29 of the NCTE Act pertains to directions by the Central Government. Sub-section (1) of Section 29 provides that the NCTE shall, in the discharge of its functions and duties under this Act, be bound by such directions on questions of policy as the Central Government may give in writing to it from time to time. Sub-section (2) of Section 29 provides that the decision of the Central Government as to whether a question is one of policy or not shall be final.
23. Section 32 of the NCTE Act gives power to the NCTE to frame regulations. As per sub-section (1) of Section 32, the NCTE may, by notification in the Official Gazette, make regulations not inconsistent with the provisions of this Act and the rules made thereunder, generally to carry out the provisions of this Act. Sub-section (2) of Section 32 which provides that in particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely those ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 28 contained in various sub-clauses of the said sub-section, which was amended by insertion of Clause (dd) pertaining .
to the minimum qualifications of teachers under Section 12A.
24. Section 33 of the NCTE Act requires the rules and regulations framed by the NCTE to be laid before the Parliament, which reads as under:-
"33. Rules and regulations to be laid before Parliament.--Every rule and every regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both House agree in making any modification in the rule or regulation, or both House agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation."::: Downloaded on - 21/09/2022 20:05:39 :::CIS 29
25. The NCTE in exercise of powers under sub-
section (1) of Section 23 of the RTE Act had issued a .
notification dated 23.08.2010 prescribing minimum qualifications for a person to be eligible for appointment as teacher in classes-I to VIII in a school referred to in Clause
(n) of Section 2 of the RTE Act. Clause (1) of this notification pertains to minimum qualifications. Sub-clause (i) prescribes minimum qualifications for classes-I to V. The recognized persons with senior secondary or equivalent with diploma in elementary education (which is, as noted, is called D.El.Ed.) by whatever name called or senior secondary passed with prescribed percentage and 4 years Bachelor of Elementary Education and 2 year Diploma in Education as qualified for appointment; provided they possess Teacher Eligibility Test passed certificate as conducted in accordance with the guidelines framed by the NCTE. In contrast, for classes-VI to VIII, as per this notification a candidate must possess degree in B.A. or B.Sc. with Diploma in Elementary Education or such degree with minimum 50% marks with one year B.Ed. course and such similar qualifications.
::: Downloaded on - 21/09/2022 20:05:39 :::CIS 3026. The notification dated 23.08.2010 was amended by the NCTE vide notification dated 29.07.2011. Certain .
modifications were made in the essential qualifications for appointment of a teacher for classes-I to V as well as classes-VI to VIII. We are directly concerned with these changes brought about by the subsequent notification dated 29.07.2011, which reads as under:-
"National Council for Teacher Education r 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:-::: Downloaded on - 21/09/2022 20:05:39 :::CIS 31
(1) For sub-para (I) of para I of the Principal Notification, the following shall be substituted, namely:-
.
1. Minimum Qualifications:-
(I) Class 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.EI.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 framed by NCTE for the purpose.
::: Downloaded on - 21/09/2022 20:05:39 :::CIS 32(II) For sub-Para (ii) of para 1 of the Principal Notification, the following shall be substituted, namely:-
.
(ii)Classes VI-VIII
(a) Graduation and 2 year Diploma in Elementary Education (by whatever name known) OR Graduation with at least 50% marks and 1 year Bachelor in 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 appropriate Government in accordance with the guidelines framed by the NCTE for the purpose.
::: Downloaded on - 21/09/2022 20:05:39 :::CIS 33(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 SC/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 school has issued an advertisement to initiate the process of appointment of teachers prior to the date of his Notification, such appointment 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).::: Downloaded on - 21/09/2022 20:05:39 :::CIS 34
(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 Government and other school managements shall be applicable till such time the NCTE lays down the minimum qualifications in respect of such teachers.
r VIKRAM SAHAY, CONVENER [ADVT-III/4/131/2011/Exty.] Note:- The Principal Notification was published in the Gazette of India, Extraordinary, Part III, Section 4 vide Number F.61-3/2011-NCTE (N&S), dated the 23rd August, 2010."
27. As observed above, the entire controversy revolves and hinges around the Notification dated 29.07.2011 issued by the NCTE making certain amendments in the earlier Notification dated 23.08.2010.
28. The NCTE has filed reply in one of the connected cases i.e. CWP No. 3132 of 2019, wherein it is averred that D.EI. Ed/JBT and B.Ed. Trained Teachers are specially ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 35 trained to teach Primary/High/Secondary classes. Therefore, NCTE being an "academic authority" is competent to .
prescribe the minimum qualification for the recruitment of the teachers of these classes in order to raise the standard of education throughout India in the larger interest of imparting quality education to the children. Thus, the Notification dated 29.07.2011 has been issued to achieve these objectives. r
29. It is further averred that to prescribe the academic standards falls in the exclusive domain of the academic bodies and, therefore, the judicial review in such matters would be very limited, especially, when the notifications are intended to improve the academic standards in the respective fields. It has been claimed that as per settled law of the Hon'ble Supreme Court, the minimum qualification as laid down by the NCTE Authorities under the Act for appointment of teachers is binding upon all States irrespective of State policy pertaining to this effect.
30. It has also been claimed that since the Notification dated 29.07.2011 has never been challenged in ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 36 these batch of petitions, therefore, the same need not to be adjudicated upon and the State Government itself cannot .
change its stand.
31. It has been averred that the NCTE had issued the Notification dated 29.07.2011 on the directions issued by the Government of India, (MHRD) in exercise of powers vested in MHRD under Section 29 of the NCTE Act vide letter dated 25.04.2011 followed by another letter r dated 23.05.2011 inter alia directing the NCTE to insert the following paragraph:-
"The minimum qualification norms referred to in this Notification shall apply to teachers of Languages, Social Studies, Mathematics, Science etc. for appointment 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, Work Education, etc. the existing eligibility norms prescribed by the State Governments and other school management shall be applicable till such time the NCTE lays down the minimum qualification in respect of such teachers."::: Downloaded on - 21/09/2022 20:05:39 :::CIS 37
32. It is also claimed that once the policy decision is taken by the MHRD and conveyed to the NCTE, the same is .
binding on the NCTE as per Section 29 of the NCTE Act, 1993 and the NCTE is required to comply with the same.
33. At this stage, it would be necessary to reproduce the contents of the letters dated 25.04.2011, 23.05.2011 and 14.07.2011 as they stand and the same are accordingly reproduced hereinbelow:-
"F.No.1-3/2011-EE-4(Pt.) GOVERNMENT OF INDIA MINISTRY OF HUMAN RESOURCE DEVELOPMENT DEPARTMENT OF SCHOOL EDUCATION & LITERACY Room No.429A, "C" Wing, Shastri Bhavan, New Delhi, dated 25th April, 2011.
To The Member Secretary, National Council for Teacher Education, Wing-II, Hans Bhawan, 1, Bahadur Shah Zafar Marg, New Delhi-110 002.
Subject: Amendment to Gazette Notification dated 23rd August, 2010 on Teacher Qualifications.
Sir,
This has reference to the
Notification dated 23rd August, 2010 issued by NCTE regarding minimum teacher qualifications. You are requested to take action to incorporate the following changes in the notification under reference:::: Downloaded on - 21/09/2022 20:05:39 :::CIS 38
1. The said Notification specifies that a person with B.A./B.Sc with 50% marks and B.Ed qualification is eligible for .
appointment as a teacher in Classes VI to VIII and for Classes I to V (till January, 2012). However, under an earlier Regulation issued by NCTE on the subject, the minimum qualification specified was Graduation with B.Ed. The Notification dated 23rd August, 2010 appears to have excluded persons with B.Com and B.Ed. From being considered for appointment as a teacher. There is, therefore need to issue a clarification/amendment to the NCTE notification dated 23rd August, 2010 to rincorporate this change.
2. The Notification dated 23rd August, 2010 allows persons with Graduation and D.Ed qualification for appointment in classes I-V. It is necessary to issue a clarification/amendment that the marks obtained by them in the Senior Secondary examination need not be factored in for appointment, since such persons were already eligible for appointment in classes VI to VIII.
3. Thirdly, the notification dated 23 rd August, 2010 needs to be amended to allow persons with 45% in Graduation and B.Ed degree to be eligible for appointment for classes I to V (till January, 2012) since this category of persons have been considered eligible for appointment in classes VI to VIII in the Notification.
You are requested to take appropriate action in the matter at the earliest.
sd/-
(Vikram Sahay) Diector Telefax: 2338 1470."
::: Downloaded on - 21/09/2022 20:05:39 :::CIS 39"No.F.1-2/2011-EE.4 GOVERNMENT OF INDIA .
MINISTRY OF HUMAN RESOURCE DEVELOPMENT DEPARTMENT OF SCHOOL EDUCATION & LITERACY EE. 4 Section New Delhi, dated the 23rd May, 2011.
To The Chairperson (I/c), National Council for Teacher Education, Wing-II, Hans Bhawan, 1-
Bahadur Shah Zafar Marg, New r Delhi-110 002.
Subject: Notification of the NCTE dated 23rd August, 2010 on minimum teacher qualifications-reg.
Sir, This Ministry has received references from State Governments seeking clarification regarding applicability of the aforesaid Notification for appointment of teachers for Art, Music, Physical education, etc.
2. The matter has been in this Ministry. It has been decided that the NCTE may amend the aforesaid Notification by inserting the following paragraph therein:
"The minimum teacher qualification norms referred to in this notification shall apply to teachers of Languages, Social Studies, Mathematics, Science, etc. For appointment of teachers for physical education, the minimum qualification norms for Physical Education teachers referred to in National Council for Teacher Education (Determination of Minimum Qualifications for recruitment of ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 40 Teachers in Schools) Regulations dated 3rd September,2001 shall be applicable. For teachers of Art .
Education, 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".
3. I am accordingly directed to request you to make appropriate amendments in the aforesaid Notification.
Yours faithfully, sd/-
r (Arun Kumar) Under Secretary to the Govt. of India Tel. 23384581 Copy to: All State Education Secretaries/Commissioner, KVS/ Commissioner, NVS/Director, CTSA/Chairman CBSE/Secretary, Council for the Indian School Certificate Examinations."
"F.No.1-3/2011-EE-4(Pt.1) GOVERNMENT OF INDIA MINISTRY OF HUMAN RESOURCE DEVELOPMENT DEPARTMENT OF SCHOOL EDUCATION & LITERACY New Delhi, 14th July, 2011.
To Dr. S.K. Chauhan, Research Officer, National Council for Teacher Education, Wing-II, Hans Bhawan, Bahadur Shah Zafar Marg, New Delhi-110002.::: Downloaded on - 21/09/2022 20:05:39 :::CIS 41
Subject:- Legal Vetting of NCTE Notification with minimum qualifications for a .
person to be eligible for appointment as a teacher under RTE Act, 2009.
Sir, Reference is invited to NCTE's letter No.61-1/2011/NCTE/N&S dated 13th June, 2011 forwarding therewith a copy of the proposed amendment in the Minimum Qualifications for a Person to be Eligible for Appointment as a Teacher under provisions of the Right of Children to Free and Compulsory Education Act, 2009 for vetting.
Ministry of Law and Justice has vetted the above mentioned draft amendment and a copy of the same is forwarded to you for further necessary action at your end.
Yours faithfully, sd/-
(Arun Kumar)
Under Secretary to the Govt. of
Encl: as above. India,
Tele: 23384589."
34. When the matter came up for hearing on
18.07.2022, this Court passed the following order:-
"Heard in part.
Learned Advocate General states that in view of the affidavit filed on behalf of the NCT and particularly the record produced by it, the State may now be required to file an additional reply/supplementary affidavit, as the State now intends to change its stand.::: Downloaded on - 21/09/2022 20:05:39 :::CIS 42
Without going into the merit of this contention and without even examining it, we deem it .
proper to afford an opportunity to the State.
Needful be done within one week. For continuity, list on 27.07.2022."
35. In compliance to the aforesaid order, the State has filed a supplementary affidavit of the Principal Secretary (Education) to the Government of Himachal Pradesh, wherein it has been averred that NCTE has inserted B.Ed.
qualification for Language Teachers merely on the directions of the MHRD, whereas, the RTE Act, 2009 and Notification dated 31.03.2010 issued by the MHRD has notified NCTE as "academic authority" to lay down the qualification for being appointed as teacher under RTE Act.
Section 23 has been incorporated in the RTE Act by the legislature with specific object in mind i.e. the academic affairs particularly the prescription of curriculum for degrees/courses which makes one for being appointed a teacher as well as the essential qualification for being appointed as teacher should be prescribed by a body of the individuals who, are experts in the field. It was not the intention of the legislature that even this exercise should be ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 43 done by the Ministry i.e. MHRD at the relevant time. The call on the issue was required to be taken by the NCTE with .
the assistance of the experts in the field. But, while issuing the Notification dated 29.07.2011, the NCTE has just signed the dotted lines and acted on the letter dated 23.05.2011 wherein it has been made clear that NCTE should amend the qualifications in time with the contents of para in inverted commas.
36. It is further averred that since the Ministry is not the academic authority, therefore, it cannot usurp the functions assigned to some other authority under the Act.
Such prescription of qualifications vide Notification dated 29.07.2011 is null and void and cannot bind anyone.
37. It is lastly averred that since the Notification dated 29.07.2011 issued by the NCTE has been issued without following the procedure, therefore, the same is not binding and required to be followed by the State and the State is at liberty to prescribe the qualification for the appointment of teachers in schools and as such is not bound to amend the R&P Rules for the post of "Shastri" in accordance with the Notification dated 29.07.2011 issued by ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 44 the NCTE. Thus, the stand of the State Government is that since the amendment was unconstitutional, the same cannot .
now be thrust upon it.
38. In such background, the learned Advocate General as also the counsel(s) for the private respondents have raised the following contentions:-
(i) Under sub-section (1) of Section 23 of the RTE Act, the authority for prescribing the qualifications for appointment as primary teaches lies with the NCTE and the Ministry of HRD had no authority to give any direction in this respect.
(ii) Even under the NCTE Act, MHRD has power only to give directions in relation to the policy matters, whereas, the question of prescribing eligibility criteria for appointment as teachers is exclusively within the domain of NCTE and it is not a policy matter in which the MHRD can have any say.
(iii) In terms of Section 35 of the NCTE Act, any regulations framed by NCTE have to be placed before the Parliament for its approval which has not been done in the present case.::: Downloaded on - 21/09/2022 20:05:39 :::CIS 45
(iv) Since, the primary education is the part of the Concurrent List in Schedule VII to the .
Constitution and under Article 309, it is the power of the State Government to make appointments to the posts created under the State Government. The Union Government while framing regulations contrary to the RTE Act and Rules framed thereunder has usurped the power of the State Government to make appointment of qualified persons in the posts created under the State Government.
39. On the other hand, learned counsel(s) for the petitioner(s) would support the NCTE Notification dated 29.07.2011 and have raised the following contentions:-
(i) That the powers are exercised under sub-
section (1) of Section 23 and not under sub-
section (2) of Section 23 of the RTE Act.
(ii) The Ministry of the HRD had the powers to give directions to the NCTE in relation to the policy matters. Essentially, the educational qualification for appointment as "Shastri Teachers" is an important policy issue.
::: Downloaded on - 21/09/2022 20:05:39 :::CIS 46(iii) It is after due deliberations that the MHRD formed a view that B.Ed degree should be .
recognized as additional qualification for the post of "Shastri Teachers".
(iv) In policy matters, particularly, in the area of technical fields, such as education, the Court would not substitute its wisdom for that of the authorities duly empowered under the Statute and aided by the r experts in the field.
(v) It is contended that the sufficiency of the material before the Ministry for forming final opinion is not subject to judicial review. In any case, it is after full deliberations that the authority has come to the conclusion that the B.Ed. Degree should be recognized as the qualification for appointment to the post of "Shastri teachers".
(vi) It is contended that not placing the regulations before the Parliament would not vitiate them since the provision under Section 35 of the NCTE Act merely requires such regulations to be placed before the Parliament and does not attach any adverse consequences if the required prescription is not followed.
::: Downloaded on - 21/09/2022 20:05:39 :::CIS 47(vii) It is argued that the purpose of constituting NCTE was principally for coordinated .
development of teacher education system across the country and the dominant purpose for constitution of NCTE was not for laying down qualifications for school teachers.
(viii) It is further contended that the question with regard to the validity of Notification dated 29.07.2011 has otherwise been rendered academic in view of the judgment rendered by the Hon'ble Supreme Court in Ram Sharan Maurya and others vs. State of U.P. and others AIR 2021 SC 954 and the judgment delivered by the Division Bench of this Court of which one of us (Justice Tarlok Singh Chauhan) was a member in CWPOA No. 6251 of 2020 in case titled Vinod Kumar and others vs. State of H.P. and others, decided on 26.11.2021.
40. As noted above, the NCTE has been authorized by the Central Government for the purposes of Sub-section (1) of Section 23 as well as sub-section (1) of Section 29 of the RTE Act. Sub-section (1) of Section 23 pertains to minimum ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 48 qualifications that a person must possess for eligibility for appointment as a teacher, whereas sub-section (1) of .
Section 29 pertains to curriculum and evaluation procedure for elementary education to be laid down by the academic authority. The issues of eligibility for appointment as a teacher and the curriculum and evaluation procedure for elementary education are closely connected and interlinked.
It is possibly for this reason, that in its wisdom, the Government of India has recognized NCTE as an "academic authority" for both the purposes. While exercising such powers, the NCTE evolves important criteria and guidelines for setting the curriculum and evaluation procedure for elementary education as well as prescribing minimum qualification for appointment as a teacher.
41. Sub-section (1) of Section 23 thus authorizes NCTE as an "academic authority" duly notified by the Central Government for prescribing minimum qualifications for appointment as a teacher. The power and authority thus exclusively vests in NCTE. Sub-section (2) of Section 23 is a special provision under which the Central Government ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 49 retains its authority to relax the qualifications for appointment as a teacher under certain circumstances. As .
per this provision where a state does not have adequate institutions offering courses or 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, relax the minimum qualifications for appointment as a teacher for such period not exceeding 5 years as may be specified in the notification. First proviso of Sub-section (2) of Section 23 provides that a teacher who at the commencement of the Act does not possess minimum qualifications as laid down in sub-section (1) shall acquire such qualification within a period of 5 years. Further proviso to sub- section (2) provides that every teacher appointed or in position as on 31.03.2015, who does not possess minimum qualifications as laid down under sub-section (1) shall acquire such minimum qualification within a period of 4 years from the date of commencement of RTE (Amendment) Act, 2017.
::: Downloaded on - 21/09/2022 20:05:39 :::CIS 5042. Analysis of sub-section (2) of Section 23 would thus show that the Central Government has the power to .
relax the qualifications laid down for appointment of the teacher where adequate number of institutions offering courses or training in teacher education or teachers possessing minimum qualifications in a State are not available. Such powers are in the nature of relaxation to the essential qualifications that may be prescribed under sub-
section (1) of Section 23. In the main body of sub-section (2) and the first and second proviso thereto reference is to the qualifications laid down under Sub-section (1). The emphasis is on the person to be appointed as a teacher to possess the qualification prescribed under sub-section (1) of Section 23 which can be relaxed subject to fulfillment of conditions as provided. Thus, there is a clear distinction between the powers to be exercised under sub-section (1) of Section 23 which are vested in the NCTE and those that can be exercised by the Central Government under sub-section (2) of Section 23 of relaxing the standards laid down by NCTE under sub-section (1) of Section 23.
::: Downloaded on - 21/09/2022 20:05:39 :::CIS 5143. Adverting to the facts, it would be noticed that the entire exercise as undertaken by the NCTE to issue the .
Notification dated 29.07.2011 is as per the dictates of the MHRD without there being any independent application of mind by the NCTE.
44. Section 35 of the RTE Act, as reproduced above, confers powers on the Central Government and other authorities to issue directions or guidelines to the appropriate Government or the local authority for the purpose of implementing the provisions of the Act. But such power does not extend to the NCTE as an "academic authority" notified under sub-section (1) of Section 23 of the RTE Act.
45. Such power is also not traceable to Section 29 of the NCTE Act which reads as under:-
"29. Directions by the Central Government.-(1) The Council shall, in discharge of its functions and duties under this Act be bound by such directions on questions of policy as the Central Government may give in writing to it from time to time.::: Downloaded on - 21/09/2022 20:05:39 :::CIS 52
(2) The decision of the Central Government as to whether a question is one of policy or not .
shall be final."
46. The Central Government cannot also trace the source of power to give directions to the NCTE in exercise of its powers conferred under sub-section (1) of Section 23 of the RTE Act.
47. Even otherwise also, the primary source of powers of the NCTE to frame regulations prescribing the minimum qualifications for appointment of teachers is to be found in sub-section (1) of Section 23. In exercise of such powers, the NCTE is not to be guided or bound by any directive that the Central Government may issue. We do not find any such power retained by the Central Government under the RTE Act. Thus, we have no hesitation to conclude that the Ministry of HRD could not have mandated the NCTE to make the amendment in question.
48. Thus, we have no hesitation to conclude that the powers of the Central Government under sub-section (1) of Section 29 of the NCTE Act even though are wide enough to require the NCTE to frame regulations, but not to the extent ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 53 so as to prescribe the eligibility in a particular manner. As per sub-section (1) of Section 29, the NCTE shall in discharge .
of its functions and duties under the Act is bound by the directions on the question of policy as the Central Government may give in writing to it from time to time. The powers of the Central Government to issue directions to the NCTE and its binding effect are confined to the question(s) of policy. The legislature has clearly limited the powers of the Central Government to issue directions on the question of policy which clearly indicate that the powers thus are not plenary or all pervasive but are restricted to the question of policy alone. Such provision, therefore, has to be interpreted strictly. The legislature has constituted the NCTE with specific duties, functions and powers and under which provisions a Council has been established consisting of various experts in the field of education. The legislature while empowering the Central Government to give directions to the Council advisedly restricted such powers on the question of policy. Framing of regulations as regards prescribing eligibility criteria for appointment as primary teachers certainly cannot be said to be a policy matter.
::: Downloaded on - 21/09/2022 20:05:39 :::CIS 5449. At this stage, it needs to be noticed that Section 3 contained in Chapter II of the NCTE Act provides for .
establishment of the Council and the same reads as under:-
"3.Establishment of the Council.--
(1) With effect from such date as the Central Government may, by notification in the Official Gazette, appoint there shall be established a Council to be called the National Council for Teacher Education.
(2) The Council shall be a body corporate by the name aforesaid, having perpetual succession and a common seal with power to contract and shall, by the said name, sue and be sued.
(3) The head office of the Council shall be at Delhi and the Council may, with the previous approval of the Central Government, establish regional offices at other places in India. (4) The Council shall consist of the following Members, namely:--
(a) a Chairperson to be appointed by the Central Government;
(b) a Vice-Chairperson to be appointed by the Central Government;
(c) a Member-Secretary to be appointed by the Central Government;
(d) the Secretary to the Government of India in the Department dealing with Education ex officio;
(e) the Chairman, University Grants Commission established under section 4 of the University Grants Commission Act, 1956 (3 of 1956) or a member thereof nominated by him, ex officio;
(f) the Director, National Council of Educational Research and Training, ex officio;
(g) the Director, National Institute of Educational Planning and Administration, ex officio;
(h) the Adviser (Education), Planning Commission, ex officio;::: Downloaded on - 21/09/2022 20:05:39 :::CIS 55
(i) the Chairman, Central Boards of Secondary Education, ex officio;
(j) the Financial Adviser to the Government of .
India in the Department dealing with Education, ex officio;
(k) the Member-Secretary, All-India Council for Technical Education, ex officio;
(l) the Chairpersons of all Regional Committees, ex officio;
(m) thirteen persons possessing experience and knowledge in the field of education or teaching to be appointed by the Central Government as under, from amongst the--
(ii)
(i) Deans of Faculties of Education and Professor of Education in Universities -- Four;
r experts
education -- One;
in secondary teacher
(iii) experts in pre-primary and primary teacher education -- Three;
(iv) experts in non-formal education and adult education -- Two;
(v) experts in the field of natural sciences, social sciences, linguistics, vocational education, work experience, educational technology and special education, by rotation, in the manner prescribed -- Three;
(n) nine Members to be appointed by the Central Government to represent the States and the Union territory Administrations in the manner prescribed;
(o) three Members of Parliament of whom one shall be nominated by the Chairman of the Council of States and two by the Speaker of the House of the People;
(p) three Members to be appointed by the Central Government from amongst teachers of primary and secondary education and teachers of recognised institutions.
::: Downloaded on - 21/09/2022 20:05:39 :::CIS 56(5) It is hereby declared that the office of the Member of the Council shall not disqualify its holder for being chosen as or for being a .
member of either House of Parliament."
50. The functions of the Council have been enumerated in Section 12 and 12A of the NCTE Act and the same read as under:-
"12. Functions of the Council.--It shall be the duty of the Council to take all such steps as it may think fit for ensuring planned and co- ordinated development of teacher education and for r the determination and maintenance of standards for teacher education and for the purposes of performing its functions under this Act, the Council may--
(a) undertake surveys and studies relating to various aspects of teacher education and publish the result thereof;
(b) make recommendations to the Central and State Government, Universities, University Grants Commission and recognised institutions in the matter of preparation of suitable plans and programmes in the field of teacher education;
(c) co-ordinate and monitor teacher education and its development in the country;
(d) lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher 1 *** in recognised institutions;::: Downloaded on - 21/09/2022 20:05:39 :::CIS 57
(e) lay down norms for any specified category of courses or trainings in teacher education, including the minimum eligibility .
criteria for admission thereof, and the method of selection of candidates, duration of the course, course contents and mode of curriculum;
(f) lay down guidelines for compliance by recognised institutions, for starting new courses or training, and for providing physical and instructional facilities, staffing pattern and staff qualification;
(g) lay down standards in respect of examinations leading to teacher education qualifications, criteria for admission to such examinations and schemes of courses or training;
(h) lay down guidelines regarding tuition fees and other fees chargeable by recognised institutions;
(i) promote and conduct innovation and research in various areas of teacher education and disseminate the results thereof;
(j) examine and review periodically the implementation of the norms, guidelines and standards laid down by the Council, and to suitably advise the recognised institutions;
(k) evolve suitable performance appraisal system, norms and mechanisms for enforcing accountability on recognised institutions;
(l) formulate schemes for various levels of teacher education and identify recognised institutions and set up new institutions for teacher development programmes;
::: Downloaded on - 21/09/2022 20:05:39 :::CIS 58(m) take all necessary steps to prevent commercialisation of teacher education; and .
(n) perform such other functions as may be entrusted to it by the Central Government."
"[12A. Power of Council to determine minimum standards of education of school teachers.--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 (18 of 2011) solely on the ground of non-::: Downloaded on - 21/09/2022 20:05:39 :::CIS 59
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 (35 of 2009).]"
51. A perusal of the aforesaid provisions goes to indicate that the power is conferred upon the Council established under Section 3 to determine the minimum standards of education of school teachers. It is the Council alone which for the purpose of maintaining standards of education in schools may by regulations determine the qualifications of persons for being recruited as teachers.
There is a proper mechanism as to how these powers have to be exercised. It is the basic principle of law long settled that if the manner of doing a particular act is provided under the statute, the act must be done in that manner or not at all.
52. The origin of this rule is traceable to the decision of the Privy Council in Taylor vs. Taylor 45 LJ Ch ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 60 373 which was followed by Lord Roche in Nazir Ahmad vs. King Emperor, AIR 1936 Privy Council 253, who stated .
as under:-
"where the power is given to do certain thing in a certain way, the thing must be done in that way or not at all."
53. The rule has since been approved by the Hon'ble Supreme Court in plethora of judgments such as in Rao Shiv Bahadur Singh and another vs. State of Vindh-P. AIR 1954 SC 322, Deep Chand vs. State of Rajasthan AIR 1961 SC 1527, State of U.P. vs. Singhara Singh and others AIR 1964 SC 358, Babu Verghese & Ors.
vs. Bar Council of Kerala & Ors. (1999) 3 SCC 422, State of Jharkhand and others vs. Ambay Cements and another (2005) 1 SCC 368, Zuari Cement Ltd. vs. Regional Director, Employees State Insurance Corporation, Hyderabad and others (2015) 7 SCC 690.
54. Now, as regards the judgment passed in Vinod Kumar's case (supra), the validity of the Notification dated 29.07.2011 was again not in question in the manner as stated above and there also the Court while placing reliance ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 61 on the judgment of the Hon'ble Supreme Court in Ram Sharan Maurya's case (supra) recognized the NCTE to be .
an "academic authority", who alone could prescribe the qualifications as is evident from paras 14 to 17 of the judgment which read as under:-
"14. NCTE vide Notification dated 23.08.2010, in exercise of powers under Sub-Section (1) of Section 23 of the RTE Act prescribed minimum qualifications for a person to be eligible for appointment as teacher, including teachers in Class I to V in a school referred to in Clause (n) of Section 2 of RTE Act. The qualifications so prescribed came to be amended from time to time and one such amendment was carried vide impugned notification dated 28.6.2018, as noticed above, whereby candidates with B.Ed.
have also been made eligible for the post of JBT.
15. The issue as to legality, efficacy and prevalence of notification dated 28.6.2018 issued by NCTE is no more res-integra after the judgment passed by Hon'ble Supreme Court in Ram Sharan Maurya and others vs. State of U.P. and others, AIR 2021 SC 954. Hon'ble Supreme Court while dealing with the powers & jurisdiction of NCTE vis-a-vis Notification dated 28.06.2018 has been pleased to hold as under:::: Downloaded on - 21/09/2022 20:05:39 :::CIS 62
"38.4 It is thus clear that for maintaining standards of education in schools, the NCTE is .
now specifically empowered to determine the qualifications of persons for being recruited as teachers in schools or colleges. In addition to regulating standards in "teacher education system", the NCTE Act now deals with regulation and proper maintenance of norms and standards in respect of qualifications of persons to be recruited as teachers. By Notification dated 31.03.2010, the Central Government, in exercise of powers conferred under Section 23 of the RTE Act authorised the NCTE as an "Academic Authority" to lay down the minimum qualifications for a person to be eligible for appointment as a teacher.
40. The Notification dated 28.06.2018 issued by the NCTE was in exercise of power so conferred upon it by virtue of the Notification dated 31.03.2010. In terms of the Notification dated 28.06.2018, the qualification of 'Bachelor of Education' from any NCTE recognised institution shall now be a valid qualification for appointment as a teacher in classes I to V provided the person so appointed as a teacher mandatorily undergoes six months' Bridge Course in elementary education within two years of such appointment.
41. Going by the Parliamentary intent in empowering NCTE under the provisions of the NCTE Act and specific authorization in favour of NCTE under said Notification dated 31.03.2010, ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 63 the authority of NCTE is beyond any doubt. Though there is no specific regulation as .
contemplated under Section 32 read with Sections 12 and 12A of the NCTE Act, for the present purposes by virtue of the specific authorization under the Notification dated 31.03.2010, NCTE was entitled to lay down that those holding the qualification of 'Bachelor of Education' as detailed in said Notification are entitled to be appointed as teachers for classes I to V. Such prescription on part of the NCTE would be binding. It is for this reason that G.O. dated 01.12.2018 notifying ATRE-2019 clearly stated that the candidates possessing minimum qualifications specified in Notifications issued by the NCTE including one dated 28.06.2018 were entitled to participate in ATRE-2019.
43. The Notification dated 28.06.2018 being binding on the State Government, the statutory regime put in place by the State has to be read in conformity with said Notification. The eligibility or entitlement being already conferred by Notification dated 28.06.2018, the amendments to 1981 Rules were effected only to make the statutory regime consistent with the directives issued by the NCTE. The right or eligibility was not conferred by amendments effected to 1981 Rules for the first time and therefore the element of retrospectivity present in the concerned amendments has to be read in that perspective. The intent behind those ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 64 amendments was not to create a right for the first time with retrospective effect but was only .
to effectuate the statutory regime in tune or accord with NCTE directives. Theoretically, even if such statutory regime was not made so consistent, the concerned candidates holding B.Ed. Degrees could still be eligible and could not have been denied candidature for ATRE- 2019.
16. There also is no challenge in second set of petitions to the power vested in NCTE, by Section 12-A of NCTE Act and under Section 23(1) of RTE Act, to prescribe minimum qualification for the teachers. This being so, the Notification issued by the NCTE prescribing qualifications for the teachers of Class I to V has to be read as mandatory prescription of valid law. Education being subject of concurrent list in schedule 7 of the Constitution of India, the prevalence of Central Act shall remain.
17. Thus, it is clear from above noted exposition of law that the attempt of petitioners in second set of petitions to challenge the prescription made by NCTE vide notification dated 28.6.2018 is a futile exercise. These petitioners, in the facts and circumstances of the case, cannot be heard to have acquired any vested right on the basis of advertisement issued by HPSSC, as the said advertisement itself was deficient in prescription ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 65 of essential qualification mandated under law and hence would deem to include such lawful .
prescription. Even otherwise, the notification issued by NCTE prescribing graduation with B.Ed. as one of the essential qualifications for JBT was prior in time to the advertisement and on this account also petitioners in second set of petitions do not have any right to assail the same."
55. The issue whether the Notification 29.07.2011 had been issued after complying with the r dated provisions of the NCTE Act, more particularly, Sections 3, 12, 12A, never came up for consideration before the Hon'ble Supreme Court in Ram Sharan Maurya's case (supra) or before this Court in Vinod Kumar's case (supra).
56. Moreover, the material now placed by the NCTE along with its affidavit as taken note of in the earlier part of the judgment was never placed either before the Hon'ble Supreme Court or before this Court as the need for the same otherwise did not arise. In such circumstances, neither the judgment in Ram Sharan Maurya's case (supra) or even for that matter in Vinod Kumar's case (supra) is attracted or applicable in the instant cases.
::: Downloaded on - 21/09/2022 20:05:39 :::CIS 6657. Since, we have already held the Notification dated 29.07.2011 to be issued by the MHRD without .
following the procedure and also without application of independent mind, therefore, the further question whether the regulations were required to be placed before the Parliament has been rendered academic and need not be gone into.
58. Lastly, r the question which still remains for consideration is whether the State Government can now turn around and change its stand.
59. As observed earlier, the stand of the State Government as put-forth in its reply was that the State Government was bound by the Notification issued by the Central Government, as is evident from paras 8 and 9 of the preliminary submissions of the reply which read as under:-
"8. That in order to fulfill remaining eligibility condition of possessing B.Ed./D.L.Ed./B.L.Ed. Or whatever name so known for considering for appointment as Shastri, the respondent No.1 by adhering to the norms of NCTE, decided to offer appointments to the candidates recommended by the HPSSSB Hamirpur for the post of Shastri under post Code 572 by imposing condition that ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 67 the selected incumbents had to acquire/fulfill qualification of B.Ed./D.L.Ed./B.L.Ed. It was also .
intimated to impose similar condition to the batch-wise appointees of Shastri for the year 2016 and 2017.
9. That the said condition of acquiring/fulfilling qualification of B.Ed./D.L.Ed./B.L.Ed is being imposed to appointees of Shastri in future also so that NCTE norms could not be violated.
Moreover, the State is bound to implement NCTE regulations in letter and spirit. Recruitment and Promotion Rules of Shastri wherein the qualification of B.Ed./D.L.Ed./B.L.Ed is required to be introduced as one of the mandatory conditions and said proposal for amendment in R&P Rules is under process at the level of competent authority for its finalization."
60. Now, the stand of the respondent-State is that since NCTE has not applied its mind and placed the matter before the Council as was required under Sections 12 and 12A of the NCTE Act, therefore, the instructions issued by the NCTE are not binding upon it.
61. It needs to be noticed that the change in stand of the State Government is solely on the basis of the affidavit and the material placed by the NCTE and we really see no ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 68 reason why in such circumstances the State should not be permitted to change its stand.
.
62. Even otherwise, it is settled law that a categorical admission cannot be resiled from, but in a given case, it may be explained and clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. r
63. In the instant case, it has been duly established and otherwise recognized by this Court that it is the NCTE alone that has been notified an "academic authority" for the purpose of sub-section (1) of Section 23 as well as sub-section (1) of Section 29 of the RTE Act and, therefore, in terms of sub-section (1) of Section 23, it is the NCTE alone which has authority to prescribe minimum eligibility qualification for appointment as a teacher. But, then such qualifications have to be laid down by the NCTE by following the procedure as laid down under the NCTE Act, more particularly, Sections 3, 12 and 12A thereof and in case the procedure is not followed, then the instructions ::: Downloaded on - 21/09/2022 20:05:39 :::CIS 69 cannot be issued by the NCTE so as to bind the State Government.
.
64. In view of the aforesaid discussion and for the reasons stated above, we find no merit in these petitions and the same are accordingly dismissed. The parties are left to bear their own costs. All pending applications stand disposed of.
(Tarlok Singh Chauhan) Judge (Virender Singh) Judge 21st September, 2022.
(krt) ::: Downloaded on - 21/09/2022 20:05:39 :::CIS