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Rule 18 of The Right of Children to Free and Compulsory Education Rules, 2010 (for short 'the Rules of 2010') provide for minimum qualifications and relaxation.Thus as per rule 18 of the Rules of 2010, the State Government should have relaxed minimum qualification looking to delay in initiation of process of selection of Teacher at Level-I. A reference of the proviso to section 23(2) of the Act of 2009 is also given to indicate that the teachers who do not possess minimum qualification as laid down under sub-section (1) of section 23 of the Act of 2009, may acquire minimum qualifications within a period of five years. If petitioners are not in possession of required qualification then they should be governed by the proviso and not only to treat them eligible but to give them further period of five years to possess requisite qualification. Accordingly, petitioners' case is covered by the proviso to section 23(2) of the Act of 2009. This is more so when the Rajasthan Panchayati Raj Rules, 1996 (for short 'the Rules of 1996') were amended vide Notification dated 11.5.2011. As per the amended Rules, the qualification for teacher at level-I and II would be as provided by the NCTE pursuant to section 23(1) of the Act of 2009. In the aforesaid background also, section 23 of the Act of 2009 comes in picture along with proviso to section 23(2) of the Act of 2009.

Learned AAG further submits that interpretation of section 23 of the Act of 2009 has not been taken correctly by the petitioners. Section 23(1) of the Act of 2009 provides that any person possessing such minimum qualification, as laid down by an academic authority, authorised by the Central Government would be eligible for appointment. In view of the mandate of aforesaid provisions, no person is eligible for appointment unless possesses qualification as prescribed by academic authority. The academic authority in the present matter is NCTE which issued Notification to provide qualification on 23.8.2010. Sub-section (2) of section 23 of the Act of 2009 provides for relaxation in qualification but applies only in two circumstances; (i) Where a State does not have adequate institutions offering courses or training in teacher education and (ii ) teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient number. In the aforesaid two circumstances, the Central Government is given powers to relax minimum qualification by issuing a Notification but in no case beyond a period of five years.

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. (3) The salary and allowances payable to, and the terms and conditions of service of, teacher shall be such as may prescribed.

Perusal of section 23 reveals that minimum qualification for teachers would be laid down by the academic authority authorised by the Central Government. In view of the aforesaid provision, the NCTE was authorised to provide minimum qualification which issued Notification on 23.8.2010. The minimum qualification for teachers at level-I for classes I to V is provided in para (1) and (3) of the said Notification which is quoted hereunder for ready reference -

The question now comes for interpretation to proviso to section 23 (2) of the Act of 2009. To consider the aforesaid argument, it would be relevant to first refer to the mandate of section 23 of the Act. It provides that a person possess such minimum qualification as laid down by the academic authority, authorised by the Central Government by Notification, alone would be eligible for appointment as a teacher. Sub-section 2 of section 23 however gives authority to the Central Government to relax qualification for a maximum period of five years, however, such powers can be exercised only when a State is not having sufficient institutions to provide required course or training in teacher education or in case of non-availability of teachers with minimum qualification. The relaxation is not automatic therein but it can be granted by the Central Government by issuing a Notification. Both the circumstances do not exist herein to direct the Central Government to issue Notification to grant relaxation.