High Court
Case Details
WP(C) 751/2013 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) By this petition under Article 226 of the Constitution of India, petitio ners who are 25 in numbers, seek quashing of advertisement dated 22.11.2012 issu ed by the Director of Elementary Education, Assam (Annexure 14 to the writ petit ion), and further seek a direction to the respondents to take necessary steps fo r their appointment as Lower Primary (L.P) / Upper Primary (U.P) School teachers by relaxing the requirement of qualifying in Teacher Eligibility Test (TET). 2. By the annexure 14 advertisement dated 22.11.2012, Director of Elementar y Education, Assam (Respondent No. 2) had invited applications from eligible TET (Assam) qualified candidates for filling up of 11,266 vacant posts of teacher i n provincialized L.P and U.P Schools under the Directorate of Elementary Educati on, Assam as mentioned in the said advertisement. 3. Case of the petitioners is that with a view to improve the quality of el ementary education in the State and to maintain minimum standard, Government of Assam decided to provide pre-service professional training to qualified candidat es to enable them to discharge duties as Primary School teachers in a better way . Pre-service Teacher Education (PSTE) course was introduced to impart training to such candidates in the District Institute of Education and Training (DIET) du ring the period 1999-2000. This led to the formation of State Board of Teachers Education, Assam (SBTE) in 1999. In addition to the SBTE, the State Council for Education Research and Training (SCERT) acted as the nodal organization under th e Education Department, Government of Assam for improvement of school education. A curriculum for 2(two) years PSTE course was designed on the basis of the Nati onal Curriculum Framework of Teachers Education prepared by the National Council of Teacher Education (NCTE). 4. Director, SCERT, Assam invited applications vide admission notice dated 14.04.1999 from intending candidates for admission into the PSTE course, which w as a 2(two) years diploma course. In the said admission notice, it was stated th at the Government of Assam had decided to introduce the said course leading to a diploma in elementary education for improvement of professional skills of the p ersons to be recruited as teachers in elementary schools against the vacancies w hich would occur in the near future in order to maintain a minimum standard and quality in class room teaching in Primary Schools. 5. Petitioners applied pursuant to the said admission notice and were selec ted to the said course. They successfully completed the course in the year 2002 and were awarded diploma in elementary education (2 years course) by the SBTE an d SCERT. According to the petitioners, a total of 985 candidates had completed t he said course. 6. NCTE in exercise of powers conferred under Section 32 (2) (d) (i) of the National Council for Teacher Education Act, 1993 had framed a set of regulation s called National Council for Teacher Education (Determination of Minimum Qualif ications for Recruitment of Teachers in Schools) Regulations, 2001 (2001 Regulat ions). The said regulations prescribed minimum academic and professional qualifi cations for recruitment of teachers at different levels, which included diploma or certificate in basic / elementary teachers training course of a duration of n ot less than 2(two) years. The 2001 Regulations provided that the existing recru itment rules of the States would be modified within a period of 3(three) years s o as to bring such recruitment rules in conformity with the qualifications presc ribed by the 2001 Regulations. 7. In the State of Assam, the relevant recruitment rules is the Assam Eleme ntary Education (Provincialisation) Rules, 1977 (1977 Rules). However, the 1977 Rules were not amended to include the eligibility requirement as provided in the 2001 Regulations. 8. Writ petitions were filed before this Court seeking a direction to the S tate to amend the 1977 Rules in conformity with the mandate of the 2001 Regulati ons. This Court by a common order dated 18.02.2004 passed in WP(C) Nos. 2454/200 3 and 2555/2003, directed the State to consider the grievance of the petitioners and to take remedial measures by way of amendment etc. and to complete the proc
Legal Reasoning
ess before regular recruitment was initiated. 9. But no consequential steps were taken by the State in terms of the High Court order. Regional Director, NCTE wrote to the Secretary to the Government of Assam, Elementary Education vide letter dated 02.04.2004, requesting the said a uthority to amend the recruitment rules as per NCTE norms. Director, SCERT, Assa m also wrote to the respondent No. 1 vide letter dated 06.09.2005, stating that 2(two) years pre-service training was conducted during the period 2000-2001 with a view to train the selected candidates who were suitable and willing to become elementary teachers. It was stated that the course was continued for 2 years an d two batches were trained. Thereafter, the course was discontinued. It was obse rved that the trainees were selected on the basis of merit and, therefore, their cases for appointment as teacher deserved consideration. 10. The 1977 Rules was amended in the year 2005 vide the Assam Elementary Ed ucation (Provincialisation) (Amendment) Rules, 2005. However, the amendment only provided for giving preference to trained candidates, which was not in conformi ty with the norms laid down in the 2001 Regulations. 11. Thereafter, an advertisement was issued by the respondent No. 2 on 02.12 .2005 for filling up 5372 vacancies in the post of Assistant teacher in L.P. and Junior Basic Schools in the State of Assam. In the minimum qualifications presc ribed in the said advertisement, it was only provided that preference would be g iven to trained candidates who had obtained diploma in elementary education of 2 years course. 12. This advertisement was challenged before this Court in a batch of writ p etitions, the leading case being WP(C) No. 8727/2005. It was contended that the Assam Elementary Education (Provincialisation) (Amendment) Rules, 2005 and the a dvertisement dated 02.12.2005, which was based on the Amendment Rules, which con templated grant of preference to trained teachers, was not in conformity with th e 2001 Regulations inasmuch as under the said Regulations, diploma or certificat e in basic / elementary teachers training having a duration of 2 years was made mandatory. This Court by the common judgment and order dated 09.04.2009 for the reasons mentioned therein declared the Assam Elementary Education (Provincialisa tion) (Amendment) Rules, 2005, in so far giving of preference to trained teacher s was concerned, as invalid, being contrary to the provisions of the National Co uncil for Teacher Education Act, 1993 and the 2001 Regulations framed thereunder . Regarding the advertisement dated 2.12.2005, taking into account the fact that the selection process pursuant to the advertisement had been completed in the m eantime, the Court took the view that the recruitment contemplated by the advert isement dated 02.12.2005 may be completed in terms of the said advertisement if the State was so inclined to do. But it was made clear that in future, recruitme nt of teachers in the L.P. Schools of the State would have to conform to the req uirement of academic and professional qualifications spelt out by the 2001 Regul ations. Thus, by the aforesaid judgment, though the Amendment Rules were struck 13. down as invalid, the advertisement was permitted by this Court to be taken into its logical conclusion. Aggrieved by the same, petitioners and others moved the Hon’ble Supreme Court by filing special leave petition to appeal. The Apex Court vide the judgment and order dated 28.02.2011 which has since been reported in 2 011 (1) GLT (SC) 52 took the view that the decision of the High Court permitting the State Government to continue with the recruitment process initiated on the basis of the Amendment Rules, 2005 which were declared by it to be illegal is cl early indefensible. Consequently, the leave granted by the High Court to the Sta te to complete the selection process in terms of the advertisement dated 02.12.2 005 as well as the said advertisement dated 02.12.2005 were quashed. 14. In the meanwhile, the Right of Children to Free and Compulsory Education Act, 2009 (2009 Act) was enacted. In exercise of the powers conferred by sub-se ction (1) of Section 23 of the said 2009 Act, NCTE laid down certain minimum qua lifications for a person to be eligible for appointment as a teacher in Class I to VIII in a school referred to in section 2(n) of the 2009 Act vide notificatio n dated 23.08.2010. Among the minimum qualifications prescribed, it was provided that a candidate should pass in the TET to be conducted by the appropriate Gove rnment in accordance with the guidelines framed by the NCTE for the purpose. In addition, the 2 year diploma in elementary education was retained. 15. It appears that the petitioners and similar others, who had obtained 2 y ears diploma in elementary education and were covered by the 2001 Regulations, s ubmitted a representation dated 01.07.2011 before the Education Minister, Assam seeking exemption from the TET qualification. In this connection, the Education Minister sought for the views of the Director, SCERT to enable the Government to take further necessary action. Director, SCERT, Assam submitted his views to the respondent No. 1 on 06 16. .07.2011 stating that two batches of trainees had undergone the 2 years diploma in PSTE course during 1999-2001 and 2000-2002. Total number of trainees who had obtained the diploma is 985. He opined that the Government may take a sympatheti c view for recruiting PSTE diploma holders on the basis of norms applicable at t he relevant time, if required by relaxing the existing norms. 17. Respondent No. 2 issued an advertisement on 22.11.2012 inviting applicat ions for filling up of 11,266 posts of Assistant teacher in L.P and U.P Schools from amongst the TET qualified candidates. Aggrieved, petitioners have filed the present writ petition challenging 18. the legality and validity of the decision of the respondents to make TET qualifi cation a mandatory requirement for recruitment to the post of Assistant teacher in L.P and U.P Schools and have consequently impugned the above advertisement. 19. According to the petitioners, the vacancies sought to be filled up arose prior to the NCTE notification dated 23.08.2010 which should be filled up on th e basis of the criteria under the 2001 Regulations. The earlier recruitment proc ess conducted in the year 2005 should have been conducted as per the 2001 Regula tions where 2 years diploma in elementary education was a mandatory requirement. But the Government instead of making it a mandatory eligibility condition, only provided that preference would be given to candidates having such diploma. Sinc e the advertisement was not as per the 2001 Regulations, the same was quashed by the Apex Court. No steps were taken by the State to hold recruitment in terms o f the 2001 Regulations, and now, after the notification of NCTE dated 23.08.2010 , the State has issued the impugned advertisement making TET qualification a man datory eligibility requirement. Since the petitioners are not TET qualified, thi s has caused severe prejudice to them as it has effectively excluded them from a ny future employment as teachers. 20. Having regard to the subject matter of the writ petition, this Court vid e order dated 19.02.2013 while issuing notice observed that the matter would be taken up for disposal at the admission stage, giving liberty to the parties to e xchange affidavits. However, no affidavit has been filed by the State. 21. Mr. D.K. Mishra, learned Senior counsel appearing for the petitioners su bmits that petitioners have been subjected to an unfair treatment at the hands o f the respondent State. Petitioners had acted on the assurance of the State whic h was manifest in the admission notice dated 14.04.1999 itself that having the 2 years diploma would enable them to be recruited as school teachers and after du e selection, they completed the said course and obtained the diploma. This was t he eligibility requirement under the 2001 Regulations as well. He submits that t he undisputed facts clearly demonstrate that the respondents had not followed th e statutory requirement in the earlier recruitment, because of which it was inte rfered with by the Apex Court. Had timely steps been taken, petitioners would ha ve been recruited as selection would have been confined to candidates having the above diploma only. Therefore, insistence on TET qualification now as per the N CTE notification dated 23.08.2010, in the circumstances of the case, would amoun t to barring the petitioners from competing for the post of Assistant teacher. H e submits that for the inaction of the Government, citizens should not be made t o suffer. In support of his submissions, learned Senior counsel has placed relia nce on the following decisions: (1) (1991) 4 SCC 243 (2) (3) State of Sikkim -vs- Dorjee Tshering Bhutia and Others. (1997) 1 SCC 111 U.D. Lama and Others -vs- State of Sikkim and Others. (2008) 10 SCC 1. Official Liquidator -vs- Dayanand and Others. 22. Opposing the submissions of the learned Senior counsel, Mr. D. Saikia, l earned Addl. Advocate General, Assam submits that Section 23 of the 2009 Act pro vides 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. Accordingly, minimum qualifications h ave been laid down vide NCTE notification dated 23.08.2010. Power of relaxation of the minimum qualifications is vested in the Central Government. Considering v arious aspects, Assam Government had moved the Central Government for such relax ation. In terms of Section 23 (2) of the aforesaid Act, notification dated 26.08 .2011 was issued by the Government of India in the Ministry of Human Resource De velopment (Department of School Education and Literacy) relaxing the minimum qua lification notified by the NCTE, copy of which has been placed before the Court by Mr. Saikia. The relaxation is in respect of 2(two) years diploma in elementar y education and 1 (one) year Bachelors in Education. But no relaxation has been granted in so far qualifying in TET is concerned. In fact, State of Assam is req uired to conduct TET as per guidelines and to consider only those who have passe d TET for appointment as teacher. He submits that no promise or assurance was gi ven by the State to the petitioners or similar other candidates that they would be considered for appointment on the basis of their diplomas. The sympathetic vi ew expressed by the Director, SCERT is not shared by the Government. Petitioners are not TET qualified, which is the mandatory requirement, in so far the impugn ed advertisement is concerned. No further relaxation can be granted as sought fo r by the petitioners. He, therefore, seeks dismissal of the writ petition. In su pport of his submissions, learned Addl. Advocate General has placed reliance on the following decisions: (1) (2)