Allahabad High Court
Bijay Kumar And 2 Others vs State Of U.P. And 22 Others on 10 December, 2014
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Chief Justice's Court Case :- SPECIAL APPEAL No. - 1113 of 2014 Appellant :- Bijay Kumar And 2 Others Respondent :- State Of U.P. And 22 Others Counsel for Appellant :- Akhilesh Kumar Singh,Radha Kant Ojha Counsel for Respondent :- C.S.C.,Durga Tiwari,Rashmi Tripathi Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Pradeep Kumar Singh Baghel,J.
The writ petition was filed before this Court by private respondents 16 to 23 seeking to challenge an advertisement issued by the Regional Joint Director of Education on 27 September 2014 for selection and appointment of Assistant Teachers in physical education in L.T. grade in Government Intermediate Colleges and Government Girls Intermediate Colleges. Under the advertisement, the prescribed qualification was a diploma in physical education from a recognized institution. Rule-8 of the U.P. Subordinate Educational (Trained Graduate Grade) Service Rules 1983 laid down the academic qualifications for holding the post of Assistant Master/ Mistress in physical education as a Bachelors Decree from a recognized university or any degree recognized by the Government or equivalent thereto and a diploma in physical education.
The private respondents who had filed the writ petition before the learned Single Judge were all candidates who had completed a Bachelor's degree in Physical Education. Their case was that under the National Council for Teachers Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations 2001, the prescribed qualification for a teacher in physical education was a graduate degree together with a Bachelor's Degree in physical education or its equivalent. Since the advertisement which was issued by the State, prescribed a qualification at variance with the qualification required under the Regulations framed by NCTE, in 2001, a writ petition was filed. The relief claimed included a mandamus for considering candidates with the B.P.Ed Decree for appointment as Assistant Teachers in L.T. grade.
The learned Single Judge has, inter alia, relied upon a judgment of a Division Bench of this Court in Prabhat Kumar Vs. State of U.P.1 decided on 16 December 2013. The view which the learned Single Judge has taken, following the judgment of the Division Bench is as follows:
"Thus the ratio of the aforesaid judgment is very clear i.e. qualification for appointment as teachers of pre-primary, primary, upper primary, secondary, senior secondary or intermediate schools or college, by whatever name called, established, run, aided or recognised by Central Government or by State Government or a local of other authority must necessarily be those that are stipulated under the Act of 1993 as amended from time to time and the regulations and notifications issued thereunder. The contrary qualification prescribed by the State Government under rules framed by it have to give way to the qualifications prescribed by N.C.T.E., as aforesaid.
In view of the provisions of Article 309 of the Constitution of India and a catena of decision on this issue it is trite that service Rules made under the proviso to Article 309 have to give way to statutory regulations made under a legislative enactment. Reference may be made in this regard to the case reported in (1998)3 SCC 495 A.B. Krishna Vs. State of Karnataka.
In this case there is a clear contradiction in the qualification prescribed by the State under the Service Rules made by it under the Proviso to Act 309 of the Constitution of India and that prescribed by N.C.T.E. Under the Act of 1993. Thus the Service Rules of 1983 made under the proviso of Article 309 will have to give way to the statutory regulations made by N.C.T.E. Under Section 32(2) of the Act of 1993, especially in view of the provisions of the Act of 1993, as the field relating to prescription of qualification of teachers of institutions in question is covered by the Act of 1993".
In the operative directions the learned Single Judge has directed the State Government to consider the issue regarding the prescription of qualifications to the post of Assistant Teacher for Physical Education in the light of the discussion and to take a considered decision in accordance with law within two months. In the meantime, the State has been restrained from holding a selection in pursuance of the advertisement which was in question.
On 3 September 2001, the National Council for Teachers Education (NCTE) framed the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in School) Regulations 2001. Regulation 2 provided that the regulations would be applicable for recruitment of teachers in all formal schools established,run,aided or recognized by the Central Government or State Government and other authorities for imparting education at the elementary, secondary and senior secondary stages. In terms of Regulation 3 the qualifications were to be prescribed in the First and Second schedule. The qualifications prescribed in the First schedule apply for recruitment of teachers for teaching school subjects. The Second schedule qualifications apply for recruitment of teachers of physical education. Regulation 4 stipulated that the existing recruitment rules may be modified within a period of three years to bring them in conformity with the qualifications in the schedule. In the meantime, teachers appointed under the existing recruitment rules, were required to acquire the qualifications as prescribed in the Schedules.
The Second schedule which laid down qualifications for recruitment of teachers of Physical Education in educational institutions mentioned in Regulation 2 provided for minimum academic and professional qualifications at the elementary stage; the secondary and higher secondary stage; and the senior secondary stage. In so far as secondary and higher secondary teachers in physical education are concerned, the prescribed qualification is a graduate degree with a Bachelor's degree in physical education or its equivalent.
Section 23 of the Right of Children to Free and Compulsory Education Act 2009, inter alia, provides that any person possessing such 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 N.C.T.E. Regulations of 2001 were formulated under the provisions of Section 32(2)(d)(i) and Section 12 (d) of the National Council for Teacher Education Act, 1993. Parliament enacted Amending Act 18 of 2011, called the National Council for Teacher Education (Amendment) Act, 2011 which received the assent of the President on 12 October 2011 and was published in the government gazette on 13 October 2011. The expression 'school' came to be inserted in the parent act by the amending provisions which inserted clause (ka) to read as follows:
'(ka) "school" means any recognized school imparting pre-primary, primary, upper primary, secondary or senior secondary education, or a college imparting senior secondary education, and 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, 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, the State Government or a local authority;"
Section 1(4) was introduced into the parent act to, inter alia, provide in clause (c) that the Act would apply to schools imparting pre-primary, primary, upper primary, secondary or senior secondary education, and colleges providing senior secondary or intermediate education by whatever name called and to teachers for schools and colleges refered to in clause (c).
Section 12A2 was introduced by the Amending Act to read as follows:
"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 recognized by the Central Government or a State Government or a local 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 effect of the Amending Act of 2011 is that the parent act would apply to schools imparting education at all levels commencing from the pre-primary stage to the senior secondary stage and to colleges providing senior secondary and intermediate education as well as to teachers of such schools and colleges. The net result of Section 12A is that NCTE is empowered by the Regulations to determine the qualifications of persons for being recruited as teachers at all levels: pre-primary, primary, upper-primary, secondary, senior secondary or intermediate schools or any college, so long as the institution is established, run, aided or recognized by the Central Government or State Government or by a local or other authority. The proviso to Section 12A however introduced a protection to the effect that the Regulations to be framed by NCTE would not adversely affect the continuance of persons recruited in such institutions before the commencement of the Amending Act of 2011 solely on the ground that they do not fulfill the qualifications prescribed by the Council. However, the second proviso mandates that such teachers who are referred to in the first proviso would have to acquire the minimum qualifications within the period specified in the Act or under the Right of Children to Free and Compulsory Education Act, 2009. The first proviso to Section 12A protects those who were recruited prior to the enforcement of the Amending Act of 2011 but even such teachers are required to obtain the minimum qualifications within the specified period. However, in respect of all teachers who are to be freshly recruited after the date on which the Amending Act of 2011 has been brought into force, the exception which is carved out by the first and second proviso of Section 12A would not be attracted. Recruitments which do not fall within the purview of the exception contained in the first proviso to Section 12A must abide by the minimum qualifications which are prescribed by NCTE.
The appellants have sought to question the correctness of the judgment of the learned Single Judge. The appellants are (it has been conceded on their behalf at the hearing) teachers who do not possess the BPEd qualification but are only diploma holders in education. Two submissions have been urged in the alternative. The submission is that this court may either construe the provisions of the Amending Act of 2011 as clarificatory in which event it would relate back or, in the alternative, after the date of enforcement of the Amending Act on 13 October 2011, a further period of three years should be granted for the acquisition of the minimum qualifications which are prescribed by NCTE in 2001.
As we deal with the submissions, we must preface our observations by referring to two judgments of the Full Benches of this Court in which the provisions of Section 12A and of the Regulation's which have been framed by NCTE have been held to be binding.
The first decision of the Full Bench is in Shiv Kumar Sharma Versus State of U.P.3 and the second decision is in Ram Surat Yadav Versus State of U.P.4 In the second Full Bench decision, the position as it emerges after the Amending Act 18 of 2011 was brought into force has been summarized as follows; after duly taking congnizance of the earlier decision:
"In view of the amendments which have been brought about by Amending Act 18 of 2011 with effect from 12 October 2011, it is clear that the NCTE is empowered by Regulations to 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 which is established, run, aided or recognised by the Central Government or by a State Government or a local or other authority. The first proviso to Section 12A, however, protects the continuance of persons who are recruited immediately prior to the enactment of the amending Act which would not be called into question solely on the ground of non-fulfilment of the qualifications as may be specified by the Council. The second proviso, however, stipulates that the minimum qualifications so prescribed shall be acquired within the specified period. Consequently, in view of the enactment of the Amending Act of 2011, the controversy has been set at rest by Parliament having provided that the NCTE is duly empowered to prescribe the qualifications for persons who are recruited as teachers from the pre-primary to the intermediate school or college level. The provisions of the Act and the Regulations have been held by a Full Bench of this Court in Shiv Kumar Sharma and Ors Vs. State of U.P. and Ors. to be binding."
The Regulations which have been framed by NCTE are in pursuance of a legislation which has been enacted by Parliament. Once Parliament has legislated and NCTE as the delegate of Parliament has framed Regulations, all actions by the State in the exercise of its rule making authority have to abide by the rigour and discipline of the Regulations which have been framed by NCTE. NCTE has been constituted as a central authority for the purpose of regulating a subject which falls within its statutory control in the interest of promoting quality education. Article 256 of the Constitution requires that the executive power of every State shall be so exercised as to ensure compliance with laws made by Parliament. Article 257 stipulates that the executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union. In exercise of its executive power, when the State issued an advertisement for the recruitment of teachers the minimum qualifications which are prescribed by NCTE must necessarily govern and no provisions to the contrary can be valid in law. The rules which have been framed by the State have to be in conformity with the statutory regulations framed by NCTE. The state lacks the power or authority to override the regulations framed by NCTE. The minimum qualifications which have been prescribed by NCTE are binding upon the state.
The learned Single Judge having correctly appreciated the position in law has directed the State Government to consider the issue in the light of the reasons indicated in the judgment within a period of two months. The reason why the State has been directed not to conduct any selection in pursuance of the impugned advertisement is only to ensure that further complications do not arise by the recruitment of persons who do not fulfill the minimum qualifications which have been prescribed by NCTE.
We find no reason to accept the submission that a period of three years should be allowed from the date of enforcement of the Amending Act 18 of 2011. We may only note that under the first proviso to Section 12A what was sought to be produced by Parliament was the service of those who had been appointed prior to the enforcement of the Amending Act but even such persons are required to obtain the qualifications prescribed within the stipulated period. The protection will certainly not enure to the benefit of fresh recruitments which must necessarily abide by the minimum qualifications prescribed by NCTE. There is evidently no difficulty in implementing the Regulations which have been framed by NCTE because the State has not moved the NCTE on any ground of administrative difficulty.
For these reasons, we see no reason to entertain the special appeal.
The special appeal is, accordingly, dismissed. There shall be no order as to costs.
Order Date :- 10.12.2014 Fhd.
(Dr. D.Y. Chandrachud, CJ.) (P.K.S. Baghel, J.)