Special B.T.C. trainees sought appointment as primary teachers without TET against earlier vacancies. The court held that the training advertisement did not initiate recruitment and that candidates trained after the NCTE notification were not exempt from TET. The writ petitions were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
(1)
A.F.R.
RESERVED
Case :- WRIT - A No. - 42361 of 2015 Petitioner :- Rajeev Verma And 111 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shailendra,Avanish Ranjan Srivastava,G. Chauhan,Girish Chandra,Lal Chandra Counsel for Respondent :- C.S.C.,Anuj Pratap Singh,Rashmi Tripathi,Virendra Chaubey
AND
Case :- WRIT - A No. - 26370 of 2016 Petitioner :- Bhupendra Kumar And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Avanish Ranjan Srivastava Counsel for Respondent :- C.S.C.,Mrigraj Singh,Ram Bilas Yadav,Rashmi Tripathi
AND
Case :- WRIT - A No. - 45227 of 2015 Petitioner :- Munesh Pal Singh And 8 Ors. Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Avanish Ranjan Srivastava Counsel for Respondent :- C.S.C.,A.K. Yadav,Arun Kumar,Rasmi Tripathi,Ravi Agrawal
AND
Case :- WRIT - A No. - 48159 of 2015 Petitioner :- Ashwani Kumar Awasthi And 4 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- H.M.B. Sinha,H.A.B. Sinha Counsel for Respondent :- C.S.C.,Rajiv Joshi,Rashmi Tripathi,Sunil Kumar Singh
AND
Case :- WRIT - A No. - 49375 of 2015 Petitioner :- Jai Singh And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Gyan Narayan Kanaujiya,P.S. Prasad Counsel for Respondent :- C.S.C.,Jayram Pandey,Rajiv Joshi
(2)
AND
Case :- WRIT - A No. - 14701 of 2015 Petitioner :- Alok Mishra And 12 Ors. Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Ravindra Singh,Avanish Ranjan Srivastava Counsel for Respondent :- C.S.C.,C.K. Rai
AND
Case :- WRIT - A No. - 51554 of 2016 Petitioner :- Geeta Rani Kapadia And 5 Ors. Respondent :- State Of U.P. And 4 Ors. Counsel for Petitioner :- Avanish Ranjan Srivastava Counsel for Respondent :- C.S.C.,Ram Bilas Yadav,Shivam Yadav
AND
Case :- WRIT - A No. - 37084 of 2016 Petitioner :- Ravindra Yadav Respondent :- State Of U.P. And 4 Ors. Counsel for Petitioner :- Shailendra Counsel for Respondent :- C.S.C.,Ras Bihari Pradhan,Rashmi Tripathi
AND
Case :- WRIT - A No. - 68255 of 2015 Petitioner :- Apra Goel And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Hari Manish Bahadur Sinha Counsel for Respondent :- C.S.C.,Dhananjay Awasthi,Rajiv Joshi,Sunil Kumar Singh
AND
Case :- WRIT - A No. - 69434 of 2015 Petitioner :- Niyaz Ahmad Ansari Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Achal Singh,Kushmondeya Shahi Counsel for Respondent :- C.S.C.,Rashmi Tripathi,Ravi
(3)
Agrawal,Sanjay Chaturvedi
AND
Case :- WRIT - A No. - 58193 of 2015 Petitioner :- Smt. Sandhya Srivastava Respondent :- State Of U.P. & 3 Others Counsel for Petitioner :- Pankaj Kumar Srivastava,Sasmita Srivastava Counsel for Respondent :- C.S.C.,Brikram Bahadur Singh
AND
Case :- WRIT - A No. - 58672 of 2015 Petitioner :- Rakam Singh Malik & 20 Others Respondent :- State Of U.P. & 3 Others Counsel for Petitioner :- Girish Chandra,Shailendra Counsel for Respondent :- C.S.C.,Arun Kumar,Rajesh Yadav,Rashmi Tripathi,Ravi Agrawal
AND
Case :- WRIT - A No. - 59789 of 2015 Petitioner :- Rekha Shukla & 3 Others Respondent :- State Of U.P. & 3 Others Counsel for Petitioner :- Avanish Ranjan Srivastava Counsel for Respondent :- C.S.C.,A.K. Yadav,Rashmi Tripathi,Ravi Agrawal
AND
Case :- WRIT - A No. - 57482 of 2017 Petitioner :- Vandana Singh And 18 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Alok Mishra Counsel for Respondent :- C.S.C.,Bharat Pratap Singh
AND
Case :- WRIT - A No. - 3983 of 2017 Petitioner :- Mahendra Kumar Yadav And 10 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Avanish Ranjan Srivastava Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav
Hon'ble Suneet Kumar,J.
Heard Sri Shailendra, Sri Alok Mishra, Sri Avanish Ranjan Srivastava, Sri H.M.B. Sinha and Sri P.S. Prasad, learned counsel
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appearing for the petitioners and Sri Sudhanshu Srivastava, learned Additional Chief Standing Counsel assisted by Sri Ajay Prakash Paul, and Sri Prateek Sinha, learned counsel appearing for the Staterespondent, as well as, Sri Ravi Agrawal and Sri Dhananjay Awasthi, learned counsel appearing for the N.C.T.E. and Sri Arun Kumar for the Board.
The batch of the writ petitions involve challenge based on similar questions of facts and law, on consent, are being heard and decided together.
The writ petitions are primarily directed against the order dated 23 June 2015 passed by the Director of Basic Education, Lucknow, whereby, the claim of the petitioners for appointment pursuant to Government Order dated 14 January 2004 has been rejected for the reason that petitioners do not fulfill the qualifications prescribed by the National Council for Teacher Education1 . It has been pointed that in some of the writ petitions the reasons assigned for rejecting the claim of the petitioners are different, but it is not being disputed by the learned counsel for the petitioners that primarily the case of the respondent-State is that the petitioners do not fulfill the requisite qualification for appointment as primary teacher.
It is not in dispute, inter se, parties that the petitioners have not obtained training certificate pursuant to Government Order dated 14 January 2004 and, thereafter, they acquired training certificate in 2011, 2012 and 2013. Petitioners claim appointment to the post of assistant teachers in the basic schools being run and managed by the U.P. Basic Education Board2 against the post of teachers sought to be trained under Government Order dated 14 January 2004.
It appears that the State Government approached the NCTE seeking permission for conducting a bridge course in view to meet the shortage of teachers in the State. Consequently, NCTE in its meeting held on 17 March 2003 approved a short duration (six 1. NCTE
2 Board
(5)
months program) i.e. Special B.T.C. “as bridge course”. The candidates who were having Bachelor of Education (B.Ed.) degree were eligible to take the Special BTC course and upon completion of their training they were entitled to be considered for appointment as teachers in the primary classes. Pursuant thereof, State Government vide notification dated 14 January 2004, which was subsequently modified on 20 February 2004, inter alia , provided for six month training to be imparted to candidates having B.Ed./L.T. qualification. All the petitioners are B.Ed./L.T.
Learned counsel for the petitioners have placed heavy reliance on para 12 of the said Government Order to urge that the notification dated 14 January 2004 is not merely an invitation for training program but is also a recruitment process for appointment to the post of assistant teacher. Para 12 reads thus:
¼12½ izns'k 'kklu }kjk fufnZ"V ds izfr fof'k"V ch0Vh0lh0 izf'k{k.k gsrq p;fur vH;fFkZ;ksa dks :0 2500 dh Nk=ofRr ¼LVkbZisUM½ izfrekg ns; gksxkA ;g Nk=ofRr ¼LVkbZisUM½ vH;FkhZ dks rc rd vuqeU; jgsxk] tc rd foHkkx }kjk Js"Brk dze esa okafNr izf'k{k.k vH;FkhZ }kjk iw.kZ dj jkT; 'kSf{kd] vuqla/kku ,oa izf'k{k.k ifj"kn ds fu;a+=.k esa jftLVzkj] foHkkxh; ijh{kk,a m0iz0 }kjk vk;ksftr fyf[kr rFkk iz;ksxkRed ijh{kk mRrh.kZ dj visf{kr izek.k i= izkIr dj ifj"knh; izkFkfed fo|ky;ksa esa lgk;d v/;kid ds in ij fu;fer fu;qfDr izkIr ugh dj y s xsaA
Petitioners contended that they had applied for training pursuant to the advertisement issued in terms of the notification dated 14 January 2004, however, candidature of the petitioners was rejected for one reason or the other, including: (i) that they had passed their B.Ed. degree from correspondence course; (ii) that the candidates having degree in agriculture were not considered; (iii) that candidates who had obtained B.Ed. degree from out side the State were also not allowed. Consequently, several writ petitions came to be filed assailing the decision of the Board rejecting the candidature of the petitioners.
Division Bench in Sashi Sharma Versus State of U.P. and others (Special Appeal No. 346 of 2004) decided on 26 October 2007, upheld the B.Ed. degree obtained by correspondence.
The candidates having degree in agriculture were held to be
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under Science category by the Court in Niranjan Singh and others Versus State of U.P. and others (Civil Misc. Writ Petition No. 22141 of 2004) decided on 23 December 2009, and in Jitendra Kumar Sone and others Versus State of U.P. and others (Civil Misc. Writ Petition No. 3733 of 2009) decided on 13 August 2010, Court upheld the candidature of all such candidates who had obtained B.Ed. degree from out side the State. In other words the objections rejecting the candidature of the petitioners for the aforementioned reasons was not sustained by the Court. It appears that some of the decisions was carried to the Supreme Court by the State which finally came to be dismissed. As a consequence of prolonged litigation, petitioners were not imparted Special B.T.C. training during period under litigation and finally on the directions of this Court training was imparted to the petitioners subsequently i.e. in 2011, 2012 and 2013 as the case may be.
In the intervening period, NCTE, in exercise of powers conferred under sub-section (1) of section 23 of Right of Children to Free and Compulsory Education Act, 20093 , and in pursuance of Notification No. S.O. 750 (E) dated 31 March 2010 issued by the Department of School Education and Literacy, Ministry of Human Resource Development, Government of India, laid down minimum qualification for a candidate to be eligible for appointment as teacher in class 1 to 8 in a school referred to in clause (n) of Section 2 of Act 2009. The NCTE vide notification dated 23 August 2010, inter alia, included as essential qualification that a candidate must pass the Teacher Eligibility Test4 to be conducted by the appropriate Government in accordance with the guidelines framed by the NCTE for the purposes. In other words, w.e.f. 23 August 2010, TET became an essential qualification. The claim of the petitioners for appointment, inter alia, has been rejected by the respondent authorities primarily for the reason that the petitioners do not fulfill the qualification i.e. have not passed TET examination as notified by
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the NCTE.
Learned counsel for the petitioners have placed much reliance on clause (5) of the notification issued by the NCTE to contend that since the advertisement initiating recruitment process pursuant to Government Order of 2004 commenced prior to the NCTE notification dated 23 August 2010, therefore, it is urged that requirement of TET would not be an impediment in the appointment of the petitioners to the post of teacher.
Clause (5) of the notification is extracted:
“5. 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 this Notification, such appointments 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).”
In this backdrop, learned counsel for the petitioners submits: i) that Government Order dated 14 January 2004 envisaged both training and appointment program, therefore, petitioners are not covered by the subsequent NCTE notification dated 23 August 2010; ii) that TET as an essential qualification would apply to advertisements and selection process commenced after August 2010; iii) that Special BTC course was strictly confined to candidates having B.Ed. degree and in view of para 12 of the Government Order, petitioners are entitled to appointment against the vacancies of 2004;
iv) that delay, if any, caused was due to the ongoing litigation, which finally culminated in the petitioners taking training in Special BTC course of either 2011, 2012 and 2013;
v) that petitioners cannot be made to suffer for the fault of the State as the petitions rejecting their candidature was allowed much prior to August 2010.
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In rebuttal, learned Standing Counsel appearing for the Staterespondents, NCTE and the Board submits :
i) that Government Order imparting Special B.T.C. training course does not contemplate automatic appointments;
ii) that appointment of assistant teacher is governed not by the Government Order of 2004, but by the Uttar Pradesh Basic Education (Teachers) Service Rules, 19815 read with notification issued by the NCTE from time to time;
iii) that Rules 1981 mandates that on the date of appointment the candidate must have a certificate of teaching from a recognized training institution of U.P.;
iv) that admittedly, petitioners obtained their training certificate after the NCTE notification, whereby, TET was made mandatory, therefore, petitioners cannot be considered for appointment after the said date being unqualified;
v) the qualification determined by the NCTE is mandatory and the same cannot be relaxed or waived by the State Government;
vi) that the entire selections pursuant to Government Order dated 14 January 2004 has been concluded and there is no scope for any appointment.
Rival submissions fall for consideration.
The facts, inter se, parties are not in dispute. The question that arises for consideration is whether the petitioners are entitled to appointment as teachers pursuant to Government Order dated 14 January 2004 on having obtained training after the NCTE notification dated 23 August 2010 amending the minimum qualification for the post of assistant teacher.
In the State basic education is regulated by Uttar Pradesh Basic Education Act, 19726 . The Rules have been framed under the Act, namely, Rules 1981. The qualification for appointment of
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assistant teacher in Basic School for classes 1 to 8 are prescribed under Rules 1981. Upon enactment of Act 2009, the academic authority notified for prescribing the qualifications of teachers has been conferred on the NCTE. The qualifications, thereby, prescribed by NCTE is binding on all State authorities. The qualification for appointment of teachers in basic school requires possessing of teachers training or any other training course recognized by the Government as equivalent thereto. There being acute shortage of trained teachers, the State initiated Special B.T.C. course from time to time after seeking approval from the NCTE. The first Special B.T.C. course was launched in 1998 to fill up 27000 posts of assistant teachers followed by Government Order dated 14 January 2004, which is subject matter in the present writ petition, for imparting Special B.T.C. course to candidates having B.Ed./L.T. to fill up 46189 posts of assistant teachers. The candidates were to be imparted six months training course. By Government Order dated 22 August 2005, the State took a policy decision for appointment of candidates who have passed Special B.T.C. 2004 by allocating posts to different districts.
At this stage it would be apposite to scan the Rules 1981 which governs the appointment of teachers in basic school.
Rule 8 of Rules, 1981 lays down the minimum educational qualification for appointment as assistant teachers in a basic school. Rule 14 provides for determination of vacancies and preparation of list with reference to the reservation applicable on the post of assistant teacher. Rule 14(1) provides that applications are to be invited from the candidates possessing prescribed training qualification from the district concerned. Rule 14(2) provides for scrutiny of the applications received and for preparation of list of persons who appear to be possessed of prescribed academic qualifications and eligible for appointment. The list of eligible candidates is arranged with reference to the point of time the candidate had passed the required training course. A candidate
(10)
passing the training course earlier in point of time is to be placed above the one who had passed the training course later. Candidates passing the Course in one particular year are to be arranged in accordance with the quality point marks specified in the Appendix. Rule 14(5) declares that no person would be entitled for appointment unless his or her name is included in the list prepared under sub-rule (2). The list so prepared is forwarded under Rule 14(6) by the appointing authority to the Selection Committee. Rule 16 provides for the constitution of the Selection Committee. Rule 17 and 17(A) lay down the procedure for direct recruitment separately for teachers for imparting education in a language and teachers for other subjects respectively. While Rule 17 contemplates a written rest and preparation of list of the candidates who qualify the written test. Rule 17(A) does not contemplate any written test. The rule provides for preparation of list on the basis of quality point marks. Rule 17 and 17-A(2) provide that the select list prepared shall remain valid for one year from the date of its preparation. Rule 19 provides that appointing authority shall make appointment by taking the names of the candidate in the order in which they stand in the list prepared under Rule 17 or 17(A), as the case may be.
From a simple reading of the aforesaid Rules, it is apparent that only those candidates can be considered and empanelled in the select list under Rule 17 and 17(A) for being appointed under Rule 19 who are possessed of the prescribed minimum qualification. Thus, possession of prescribed minimum qualification as per Rule 8 is a condition precedent for being appointed assistant teacher in a school under the Board.
In Prabhakar Singh & others vs. State of U.P. & others7 , the appellants therein, although, were admitted in Special B.T.C. and subsequent Special B.T.C. course but due to different reasons could be declared passed after the notification dated 23 August 2010 issued by NCTE incorporating TET as an essential qualification as is in the facts of the case in hand.
7 2013(1) ADJ 651 (DB)
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The question for determination that fell for consideration before the Division Bench reads thus:
“33. Two main issues which have to be considered in this bunch of special appeals are:-
(i) Whether for the candidates who have passed BTC/special B.T.C. after the notification dated 23rd August, 2010 issued under Section 23 of the 2009 Act, the selection process shall be treated to have commenced from the date of issuance of advertisement by DIET/Director, SCERT inviting applications for selection to BTC/Special BTC so as to make them eligible for appointment under Paragraph 5 of the notification dated 23rd August, 2010?
The Court upon noticing the decision of the Supreme Court rendered in Devendra Singh and others Versus State of U.P. and others8 , wherein, Government Order dated 14 January 2004, was considered. The candidates who could not be selected, challenged the selection claiming that selection of the Special B.T.C. training course ought to have been made on the basis of yardstick as laid down in Rules 1981 since the selection to the B.Ed. course is nothing but selection process for appointment as assistant teacher. The Supreme Court upon examining the scope and ambit of para 12 of the Government Order dated 14 January 2004 repelled the argument which is noted in paragraph 6 and paragraph 10 of the judgment. Paragraph 6 reads thus:
"6. In order to resolve the controversy it is just and necessary to notice the salient features of the policy decision of the Government of Uttar Pradesh dated 14.1.2004. It is clear from a bare reading of the policy that the Government had resolved to arrange the Special BTC Training Course spread over a period of six months to all those 46,189 B.Ed./L.T. qualified candidates. The selection is for the purposes of imparting training and not recruitment into any service as such. Only such candidates who completed their training of B.Ed./L.T. …..... alone were eligible for the selection into the course.....................The policy directs the payment of stipend of Rs. 2500/- per month to the selected candidates for the special BTC training until "he is duly appointed on the post of Assistant Teacher in the basic school after passing the written and practical examinations conducted by the Registrar, Departmental Examinations, Uttar Pradesh and obtaining the required certificate, under the control of State Council for Education Research and Training, on completing the required training in the merit process."
Supreme Court upon repelling the argument that para 12 of
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the Government Order dated 14 January 2004 is an invitation for selection for the post of assistant teacher, in paragraph 10 of the report the following was observed:
“….....The submission in our considered opinion is totally misconceived. We have already noticed that the U.P. Basic Education (Teachers) Service Rules, 1981 deal with the post training scenario. The Rules deal with the selection and appointment of teachers from amongst the candidates already possessing the training qualifications. The Rules do not deal with the selection of the candidates into Basic Training Course. The reliance placed upon the said Rules by the appellants in support of their contention is totally untenable and unsustainable. These Rules do not have any bearing in the matter of selection of candidates into Basic Training Course, 2004. The policy decision of the Government dated 14.1.2004 deals with the arrangement of the Special BTC Training Course for the period of six months for those 46,189 B.Ed./L.T. qualified candidates. The process of selection of the candidates for the said training and the arrangement of the training is required to be conducted in accordance with the guidelines, directions, conditions and restrictions incorporated thereunder......”
Supreme Court in other words, clarified the legal position that the decision of the Government dated 14 January 2004, and in particular para 12, deals with the arrangement of the Special B.T.C. training course. Whereas, Rules 1981 deals with post-training scenario. According to Rule 26 of Rule 1981, the appointing authority in relation to teachers is the District Basic Education Officer. The advertisements for inviting applications for selection for Special B.T.C. course were not issued by the District Basic Education Officer but by Principals of DIET/Director of State Council of Education, Research and Training (SCERT). Clause 5 of the notification dated 23rd August, 2010 issued by the NCTE contemplates issuance of advertisement by an appropriate Government, or local authority thereto.
Under Rules 1981 on the date of selection the candidate must possess the training certificate, therefore, where a candidate is still acquiring the qualification for the post, it cannot be countenance that process for acquiring qualification for appointment is process for appointment to the post. (Vide: Prabhakar Singh)
Petitioners, admittedly for one reason or the other, acquired
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training after NCTE notification dated 23 August 2010 and on the date of their acquiring training, the qualification for appointment to the post of teacher had undergone a change requiring the candidate to pass TET. The case of the petitioners, therefore, is not covered under clause (5) of the notification dated 23 August 2010 as the selection process had not commenced prior to the said date and neither were the petitioners having the requisite qualification (training certificate) of assistant teacher prior to 23 August 2010, hence, the contention of learned counsel for the petitioners that they should be appointed assistant teachers pursuant to Government Order dated 14 January 2004 is unsustainable in law. Therefore, the impugned order cannot be faulted.
In Praphakar Singh a similar plea was raised that since some of the candidates who had obtained training pursuant to Government Order dated 14 January 2004 were given appointment after 23 August 2010 was repelled holding that mandamus cannot be issued to violate the statutory provisions. It is informed that some of the petitioners in the mean time have qualified TET, but that would not entitle them to seek appointment pursuant to Government Order dated 14 January 2004, rather they would have to apply and face selection in terms of Rules 1981.
Section 23 of Act 2009 provides that a person must possess such minimum qualification, as laid down by the academic authority authorized by the Central Government by notification. NCTE has been authorized by the Central Government to act as an academic authority. In other words, the candidate having the prescribed minimum qualification prescribed by the NCTE alone is eligible to be considered for appointment as a teacher. Petitioners in the instant case were not admitted to the Special B.T.C. course under the Government Order dated 14 January 2004 for whatever reason and after notification dated 23 August 2010 issued by the NCTE, though they were trained but have not acquired the additional minimum qualification i.e. T.E.T., as such, claim of the petitioners for
(14)
appointment against government policy to impart training in 2004 is misconceived and untenable in law.
In Shiv Kumar Sharma Versus State of U.P. and others9 , Full Bench was called upon to answer three questions. The question relevant for our purpose reads thus:
"(a) What does the phrase "minimum qualifications" occurring in Section 23 (1) of the right of Children to Free and Compulsory Education Act, 2009 (the Act) mean - whether passing the 'Teacher's Eligibility Test', is a qualification for the purposes of Section 23 (1), and it insistence by the NCTE in the Notification dated 23.8.2010 is in consonance with the powers delegated to the NCTE under Section 23 (1) of the Act?
(b) Whether clause 3 (a) of the Notifications dated 23.8.2010 and 29.7.2011 issued by the NCTE under Section 23 (1) of the Act, permits persons coming under the ambit of that clause to not undergo the 'Teacher's Eligibility Test', before they are eligible for appointment as Assistant Teachers? What is the significance of the words "shall also be eligible for appointment for Class-I to V upto 1st January, 2012, provided he undergoes, after appointment an NCTE recognized six months special programme in elementary education?”
The Full Bench while considering the relaxation provided under clause (5) of NCTE notification dated 23 August 2010, observed as follows:
“….........It is no doubt true that such candidates who did possess the qualifications as per the National Council for Teacher Education Regulation, 2001 were entitled to be appointed under the old rules prior to 23.8.2010 and according to the then existing qualifications. However, only such candidates were exempted under the notification whose recruitment process of appointment had begun prior to 23.8.2010. We have already noted hereinabove that mere completion of the process of training qualification of B.T.C. by itself is not the initiation of the recruitment process. In such circumstances, if those candidates who had completed their training qualification, but the posts had not been advertised in accordance with Rule 14, then these candidates would not be saved, and if the recruitment process begins after 23.8.2010, then in that event such candidates do not get exempted and they have to pass the teacher eligibility test.” (emphasis supplied)
The law is settled that appointment de-hors the rules cannot be said to be valid. After the enforcement of notification dated 23 August 2010 every candidate aspiring to become a teacher of
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elementary education in any of the institutions defined under the Act 2009 has to possess of the qualifications prescribed therein. The intention therefore of the legislature is clear that no teacher without such a qualification can be allowed to continue as a teacher in the institution. The Court thereafter observed as follows:
“We wish to make it clear that the law has to be followed in the manner in which it has been legislated. It cannot be diluted on account of the inaction of the State. In such circumstances all teachers whose appointment relate to the period after 23.8.2010 have to be possessed of TET. “
The Full Court approved the reasoning contained in paragraphs 34 to 53 of Prabhakar Singh , repelling the argument that the candidates seeking appointment by virtue of an interpretation of clause (5) of Notification dated 23 August 2010 to contend that since the advertisement for the training qualification had already been issued earlier, and the same amounts to initiation of the recruitment process and, therefore, such a candidate should be appointed without under going TET was rejected. The Court observed as follows:
“We are unable to agree with this proposition inasmuch as the process of recruitment would begin from the date of advertisement under Rule 14 of 1981 Rules. The advertisement for imparting special BTC training is not an advertisement for selection and appointment as an Assistant Teacher. This aspect is already covered by the first part of the judgment in Prabhakar Singh's case which has followed the ratio in the case of Devendra Singh (supra) where the Apex Court has clearly indicated that the process of recruitment would begin with the advertisement under Rule 14 . In the circumstances, the vacancies were yet to be advertised for recruitment and, therefore, no appointment process had commenced so as to be saved under the provisions of Clause 5 of the Notification dated 23.8.2010. The employer has a right to alter it's rules of recruitment and in the instant case it is by a statutory intervention that the qualifications have been prescribed afresh w.e.f. 23.8.2010 apart from the existing qualifications in the 1981 Rules................. The Notification dated 23.8.2010, therefore, alters the status of these candidates as they were not under the process of recruitment as defined under Rule 14. The argument of Sri Srivastava that clause 5 of the Notification dated 23.8.2010 saves the interveners from appearing in the Teacher Eligibility Test, therefore, cannot be accepted.”
(emphasis supplied)
Shiv Kumar Sharma has been approved and affirmed by the
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Supreme Court in State of U.P. and others Versus Anand Kumar Yadav and others10 , holding as follows:-
“We are in agreement with the above findings. In view of clear mandate of law statutorily requiring minimum qualification for appointment of teachers to be appointed after the date of Notification dated 23rd August, 2010, there is no doubt that no appointment was permissible without such qualifications.“
In view of the law enunciated, herein above, the following emerges from the facts of the case in hand:
(i) that the Government Order dated 14 January 2004 was merely an invitation to candidates holding B.Ed./L.T. to take Special B.T.C. course and certainly not an invitation for appointment as teachers as contemplated under Rule 14 of Rules 1981;
(ii) that petitioners were not admitted to the Special B.T.C. training course under Government Order dated 14 January 2004 and acquired training course after NCTE notification dated 23 August 2010;
(iii) that by notification dated 23 August 2010, the academic authority notified by the Central Government under Act 2009 i.e. NCTE incorporated TET as an essential qualification for the post of teacher;
(iv) that the case of the petitioners is not saved by clause (5) of NCTE notification dated 23 August 2010 for the reason that petitioners were still under the process of acquiring the qualification of a teacher which they admittedly acquired after 23 August 2010, therefore, cannot be considered for appointment against the vacancies advertised prior to 23 August 2010.
For the reasons and law stated hereinabove, the writ petitions being devoid of merit is accordingly dismissed.
No cost.
Order Date :- 06.04.2018 K.K. Maurya
2 issues framed by the court
Did the Special B.T.C. training advertisement under the Government Order of 14 January 2004 initiate recruitment for appointment as assistant teachers?
Were candidates who acquired training after 23 August 2010 exempt from TET under clause (5) of the NCTE notification?
Colour shows how this judgement treated each authority
Sashi Sharma Versus State of U.P. and othersReferred¶50
Sashi Sharma Versus State of U.P. and others (Special Appeal No. 346 of 2004)
Niranjan Singh and others Versus State of U.P. and othersReferred¶53
Niranjan Singh and others Versus State of U.P. and others (Civil Misc. Writ Petition No. 22141 of 2004)
Jitendra Kumar Sone and others Versus State of U.P. and othersReferred¶53
Jitendra Kumar Sone and others Versus State of U.P. and others (Civil Misc. Writ Petition No. 3733 of 2009)
Prabhakar Singh & others vs. State of U.P. & othersFollowed¶99
2013(1) ADJ 651 (DB)
Devendra Singh and others Versus State of U.P. and othersRelied on¶98
2007(4) ESC 520 (SC)
Shiv Kumar Sharma Versus State of U.P. and othersFollowed¶110
2013(3) ESC 1436 (FB)
State of U.P. and others Versus Anand Kumar Yadav and othersRelied on¶122
2017(8) ADJ 173
7 provisions across 3 enactments
Rajeev Verma
State Of U.P.
Bhupendra Kumar
Munesh Pal Singh
Ashwani Kumar Awasthi
Jai Singh
Suneet Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
