Jharkhand High Court
Kishori Lal Paswan vs Human Resources Department on 26 August, 2015
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 3566 of 2015
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1. Jharilal Mahato
2. Tilakchand Ram
3. Niranjan Prasad Mahato
4. Mahesh Prasad Thakur
5. Sunil Kumar Pandey
6. Nitu Kumari
7. Hemanti Kumari
8. Durga Kumari
9. Gyaneshwar Mahato
10.Darbari Mahato --- --- ---- Petitioner
Versus
1. The State of Jharkhand through the Chief Secretary,
Government of Jharkhand
2. The Secretary, Human Resources Development
Department, Govt. of Jharkhand
3. The Director, Primary Education, Human Resources Development
Department, Govt. of Jharkhand
4. The District Superintendent of Education, Giridih
5. The Jharkhand Academic Council through its Chairman
6. Deputy Commissioner, Giridih --- --- Respondents
---
with
W.P.(S) No. 3475 of 2015
--
Kishore Lal Paswan --- --- --- Petitioner
Versus
1. The State of Jharkhand
2. Principal Secretary, Human Resources Development
Department, Govt. of Jharkhand
3. The Director, Primary Education, Human Resources Development
Department, Govt. of Jharkhand
4. Deputy Commissioner, Giridih
5. The District Superintendent of Education, Giridih
6. Chairman, Jharkhand Academic Council
7. Secretary, Jharkhand Academic Council --- --- Respondents
CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh
For the Petitioners: M/s Indrajit Sinha, Vaibhav Kr., Arpan Mishra, Advocates in
WPS No. 3566/2015, Mr. Bhanu Kumar and Ms. Bharti
Kumari, Advocates in WPS No. 3475/2015
For the Resp-State: Mr. Rajesh Shankar, GA in WPS No. 3566/2015 and
Mr. Atanu Banerjee, GA in WPS No. 3475/2015
For the Resp-JAC: Mr. M.S. Anwar, Sr. Advocate, Mr.Afaque Ahmad, Advocate
---
03/ 26.08.2015Heard counsel for the parties.
2. Petitioners in both the writ petitions assail the advertisement issued by the District Authorities for filling up the vacancies for the post of teachers in primary schools, alleging that they, in effect, would deny consideration to persons like the petitioners who could not either get a chance to qualify the Teachers Eligibility 2. Test (TET) or failed on the first occasion.
3. It is their contention that Teachers Eligibility Test is required to be conducted annually in terms of the guidelines issued by the National Council for Teachers Education (NCTE), as per the provisions contained in the Right of Children to Free and Compulsory Education Act, 2009, which is not being followed in right spirit by the respondent Government. It was last conducted in April 2013. Thereafter the recruitment exercise being undertaken, is confined to the candidates who had qualified such Test. In the interregnum, many more candidates became eligible but are not getting opportunity to qualify in the eligibility test like the petitioners. Provisions of the Act of 2009 and NCTE guidelines of 11.02.2011 have been relied upon.
4. Respondents were asked to file counter affidavit in the matter and to apprise the Court whether any Teachers Eligibility Test is in contemplation of the respondent Department. A counter affidavit has thereafter been filed in WPS No. 3566/2015 by the respondent Department. In substance, the stand of the respondent is that there is no statutory mandate in the Act of 2009 to hold Teachers Eligibility Test annually. This is a matter of policy for the respondent Government. The Jharkhand Primary School Teachers Recruitment Rules, 2012 framed under Article 309 of the Constitution, also do not provide a statutory mandate for holding the Teachers Eligibility Test annually. It is their further contention that NCTE is a Academic Authority authorized by the Central Government in terms of section 23 of the Act of 2009 which lays down the eligibility conditions for appointment as a teacher. It is also submitted on their behalf that the eligibility conditions prescribed by the NCTE are part of the statutory rules of 2012 framed by the State Government and are also being followed in all recruitment exercise to such post. However, petitioners cannot withhold the recruitment exercise undertaken through the impugned advertisement if they are not fulfilling the eligibility conditions prescribed thereunder. It is their 3. case that if no legal right flows out of the Act of 2009 or NCTE guidelines or 2012 Rules, petitioner cannot seek a mandamus upon the respondents for holding Teachers Eligibility Test at a particular regular interval. Therefore, no interference is required in the present writ petitions.
5. Counsel for the petitioners have strenuously argued that the respondent Government is not acting in the spirit of the Act of 2009 and NCTE guidelines particularly Clause-11 thereof which lays down a particular frequency of conduct of such TET Exam. A large number of persons who have become eligible after the last TET held in April 2013 and those who might have failed in the said test, are being deprived of the right of consideration in any such recruitment exercise. Provisions of Section 26 of the Act is also being referred to in support of the contention that the respondents are under obligation to fill up the vacancies. It is submitted that the respondents also are under an obligation to say as to whether they have a policy in the matter of holding TET Exam, otherwise it would be arbitrary on their part. It is also submitted that in fact, present impugned advertisement is a second round of recruitment exercise after large number of vacancies remained unfilled and that too from the same reservoir of candidates who qualified in the TET Exam held in April 2013.
6. I have considered the submissions of the parties and also relevant provisions of the Act of 2009 and NCTE guidelines referred to hereinabove. Section 23 of the Act of 2009 mandates that only a person possessing the minimum qualifications as laid down by an academic authority authorized by the Central Government by Notification, shall be eligible for appointment as a teacher. The NCTE being authorized by the Central Government, has laid down the eligibility conditions which also includes the qualification of Teachers Eligibility Test. The provisions of Section 23 of Act of 2009 however do not lay down such statutory mandate, as canvassed on behalf of the petitioners. The NCTE while laying down the guidelines, has made the provisions which relate to 4. not only the eligibility conditions but also structure and content of TET, Qualifying marks, applicability and also the frequency of conduct of TET and validity of TET certificates. It also lays down the procedure for conduct of the test, legal disputes, Award of TET Certificate, Monitoring, etc. The eligibility conditions for participating in the test are prescribed at Paragraph-5 to 8 while the qualifying marks are prescribed at Paragraph-9 thereof. Apart from that, at Paragraph-11, frequency of conduct of TET and validity period of TET Certificate is prescribed, which reads as under:
Frequency of conduct of TET and validity of TET certificate "11. The appropriate Government should conduct a TET at least once every year. The Validity period of TET qualifying certificate for appointment will be decided by the appropriate Government subject to a maximum of seven years for all categories. But there will be no restriction on the number of attempts a person can take for acquiring a TET Certificate. A person who has qualified TET may also appear again for improving his / her score."
7. From perusal of the aforesaid guidelines, it appears that the NCTE has observed that the TET should be held at least once every year. At the same time, it also provides that the validity period of TET qualifying certificate for appointment will be decided by the appropriate Government subject to a maximum of seven years for all categories. There will be no restriction on the number of attempts a person can make for acquiring a TET Certificate. A person who has qualified TET may also appear again for improving his / her score.
8. As would appear, the Act of 2009 provides that the academic authority, so authorized by the Central Government, shall lay down the eligibility conditions for being appointed as a teacher. Those eligibility conditions have been laid down by the NCTE; whether TET is to be held once every year or not, that however, is not a mandate under the Act of 2009, though NCTE guidelines prescribes it in the nature of advisory. The provisions contained at Clause-11 referred to hereinabove, also gives an impression that the validity period of TET Certificate for the purpose of appointment can be decided by the Appropriate Government subject to a 5. maximum of seven years for all categories.
9. In view of the discussions made hereinabove in respect of the import of the Act of 2009, and the scope of NCTE guidelines, it cannot be said that the guidelines relating to frequency of conduct of TET and validity of certificate are backed by the mandate of Act of 2009. In the facts of the present case, petitioners obviously do not have the prescribed eligibility qualification of TET to be considered for appointment as a teacher in the primary schools. The advertisement on the face of it, contains the eligibility criteria as prescribed under the NCTE guidelines and also incorporated in 2012 Rules framed by the State Government. Advertisement in that sense, cannot be said to be in teeth of the Act of 2009 or NCTE guidelines or even 2012 Rules. Challenge to the advertisement can only be entertained if it is in teeth of the parent Act or Rules under which it is notified or on the face of it, is arbitrary or is ultra vires any of the provisions of the Constitution of India. Merely because the petitioners do not fulfill the eligibility of TET and are unable to participate in the recruitment exercise, that cannot be a ground to assail the advertisement in question.
10. The second prayer of the petitioners relating to issuance of writ of mandamus / direction for holding the TET Exam could arise if the petitioners could demonstrate that a statutory mandate or legal right flows from the Act of 2009 or the NCTE guidelines framed thereunder or 2012 Rules. Therefore, in absence of such a legal right recognized under the relevant Act and Rules, such a direction is uncalled for.
11. However, while refusing to entertain a challenge to the advertisement, as raised by the petitioners, this Court cannot be oblivious of the fact that the TET has been held only once in April 2013 and thereafter no further TET has been held by the State Government. It can also be taken judicial notice of that a large number of vacancies in different schools including Elementary Schools within the State, have remained vacant over a long period of time. The State has now 6. undertaken the exercise for recruitment to such post. Keeping into mind the aforesaid state of affairs, counsel for the respondent State was granted time to apprise the Court whether any Teachers Eligibility Test is in contemplation by the respondent Department. Though, counter affidavit has not been filed in the said case i.e. WPS No. 3475/2015, but counter affidavit filed in the connected case being WPS No. 3566/2015, is silent on that.
12. Therefore, while parting, it would not be out of context to observe that the State Government would consider holding of TET at an appropriate time on reasonable interval so that persons who become eligible in the meantime after the previous TET held in April 2013, could also got a chance for being considered in any recruitment exercise to the post of teachers in the primary schools of the State. The State Government cannot loose sight of the fact that large number of aspiring young citizens who may have become eligible by virtue of attaining minimum age and other eligibility conditions prescribed for appearing in the TET, do bear a hope for being given an opportunity to participate in such Teachers Eligibility Test for any recruitment in future. This approach on the part of the respondent State would also give it a larger choice of meritorious candidates who could be considered for any recruitment to be undertaken for such primary schools in furtherance of the aims and object of the Act of 2009.
13. Writ petitions are therefore disposed of with the aforesaid observations.
(Aparesh Kumar Singh, J) Ranjeet/