Allahabad High Court
Badri Narain Sharma And Others vs State Of U.P. And Others on 9 September, 2021
Bench: Munishwar Nath Bhandari, Acting Chief Justice, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved
Court No. 29
Case :- SPECIAL APPEAL No. - 1467 of 2012
Appellant :- Badri Narain Sharma And Others
Respondent :- State of U.P. and Others
Counsel for Appellant :- Siddharth Khare,Ashok Khare
Counsel for Respondent :- C.S.C.,Yatindra
With
Case :- SPECIAL APPEAL No. - 1468 of 2012
Appellant :- Vijay Shanker Sharma And Others
Respondent :- State of U.P. and Others
Counsel for Appellant :- Siddharth Khare,Ashok Khare
Counsel for Respondent :- C.S.C.
With
Case :- SPECIAL APPEAL No. - 1475 of 2012
Appellant :- Mitesh Kumar Mishra And Another
Respondent :- State of U.P. and Others
Counsel for Appellant :- Vimal Chandra Mishra,Anish Kumar Singh,Siddharth Khare
Counsel for Respondent :- C.S.C.,Rajesh Khare
With
Case :- SPECIAL APPEAL No. - 1476 of 2012
Appellant :- Trilok Chandra Gaur
Respondent :- State of U.P. and Others
Counsel for Appellant :- D.K. Singh,Siddharth Khare
Counsel for Respondent :- C.S.C.,Illegible
With
Case :- SPECIAL APPEAL No. - 1479 of 2012
Appellant :- Azeem Uddin
Respondent :- State of U.P. and Others
Counsel for Appellant :- Irfan Chaudhary,Ashok Khare
Counsel for Respondent :- C.S.C.,Nisheeth Yadav
With
Case :- SPECIAL APPEAL No. - 1480 of 2012
Appellant :- Pankaj Kumar
Respondent :- State of U.P. and Others
Counsel for Appellant :- Irfan Chaudhary,Ashok Khare,Siddharth Khare
Counsel for Respondent :- C.S.C.,Nisheeth Yadav
With
Case :- SPECIAL APPEAL No. - 1481 of 2012
Appellant :- Rakesh Kumar Jaiswal
Respondent :- State of U.P. and Others
Counsel for Appellant :- Irfan Chaudhary,Ashok Khare
Counsel for Respondent :- C.S.C.,Nisheeth Yadav
With
Case :- SPECIAL APPEAL No. - 1483 of 2012
Appellant :- Ram Bodh And Others
Respondent :- State of U.P. and Others
Counsel for Appellant :- Siddharth Khare,Ashok Khare
Counsel for Respondent :- C.S.C.,D.D. Yadav
With
Case :- SPECIAL APPEAL No. - 1484 of 2012
Appellant :- Neetesh Dwivedi And Others
Respondent :- State of U.P. and Others
Counsel for Appellant :- Siddharth Khare,Ashok Khare
Counsel for Respondent :- C.S.C.,K. Shahi
With
Case :- SPECIAL APPEAL No. - 1485 of 2012
Appellant :- Gyanendra Kumar Srivastava
Respondent :- State of U.P. and Others
Counsel for Appellant :- Santosh Kumar
Counsel for Respondent :- C.S.C.,Nisheeth Yadav
With
Case :- SPECIAL APPEAL No. - 1570 of 2012
Appellant :- Archana Chaubey
Respondent :- State of U.P. and Others
Counsel for Appellant :- R.S. Misra,Arun Kumar,Siddharth Khare
Counsel for Respondent :- C.S.C.,R.P. Shukla
With
Case :- SPECIAL APPEAL No. - 1660 of 2012
Appellant :- Santosh Kumar And Anr.
Respondent :- State of U.P. and Others
Counsel for Appellant :- Pushpendra Singh Yadav,Siddharth Khare
Counsel for Respondent :- C.S.C.,Santosh Kumar Srivastava
With
Case :- SPECIAL APPEAL No. - 1805 of 2012
Appellant :- Rajesh Kumar Ojha And Ohters
Respondent :- State of U.P. and Others
Counsel for Appellant :- Santosh Kumar Yadav,Ashok Khare
Counsel for Respondent :- C.S.C.,Sanjay Chaturvedi
With
Case :- SPECIAL APPEAL No. - 1934 of 2012
Appellant :- Dhirendra Pal Singh
Respondent :- State of U.P. and Others
Counsel for Appellant :- R.K. Verma,Shyam Krishn Gupta,Siddharth Khare
Counsel for Respondent :- C.S.C.
With
Case :- SPECIAL APPEAL No. - 1935 of 2012
Appellant :- Giriraj Singh
Respondent :- State of U.P. and Others
Counsel for Appellant :- R.K. Verma,Siddharth Khare
Counsel for Respondent :- C.S.C.,Shyam Krishn Gupta
With
Case :- SPECIAL APPEAL No. - 1939 of 2012
Appellant :- Mukesh Kumar Sharma
Respondent :- State of U.P. and Others
Counsel for Appellant :- R.K. Verma,Siddharth Khare
Counsel for Respondent :- C.S.C.,Shyam Krishna Gupta
With
Case :- SPECIAL APPEAL No. - 1940 of 2012
Appellant :- Anurag Mishra
Respondent :- State of U.P. and Others
Counsel for Appellant :- R.K. Verma,Siddharth Khare
Counsel for Respondent :- C.S.C.,Shyam Krishna Gupta
With
Case :- SPECIAL APPEAL No. - 1964 of 2012
Appellant :- Bholendra Singh
Respondent :- State of U.P. and Others
Counsel for Appellant :- S.N. Yadav,Siddharth Khare
Counsel for Respondent :- C.S.C.,Manu Singh
With
Case :- SPECIAL APPEAL No. - 2027 of 2012
Appellant :- Avinash Chaudhary And Others
Respondent :- State of U.P. and Others
Counsel for Appellant :- Siddharth Khare,Ashok Khare
Counsel for Respondent :- C.S.C.
With
Case :- SPECIAL APPEAL No. - 2029 of 2012
Appellant :- Jitendra Kumar Yadav
Respondent :- State of U.P. and Others
Counsel for Appellant :- Siddhartha Khare,Ashok Khare
Counsel for Respondent :- C.S.C.
With
Case :- SPECIAL APPEAL No. - 2074 of 2012
Appellant :- Neha Sharma And Others
Respondent :- State Of U.P.And Others
Counsel for Appellant :- Santosh Kumar Yadav,Ashok Khare
Counsel for Respondent :- C.S.C.,A.K.Yadav,Awadesh Kumar,Virendra Chaubey
With
Case :- SPECIAL APPEAL No. - 2 of 2013
Appellant :- Santosh Kumar Singh And Others
Respondent :- State of U.P. and Others
Counsel for Appellant :- Santosh Kumar Yadav,Ashok Khare
Counsel for Respondent :- C.S.C.,Shyam Krishna Gupta
With
Case :- SPECIAL APPEAL No. - 3 of 2013
Appellant :- Shiv Prasad Pal
Respondent :- State of U.P. and Others
Counsel for Appellant :- Siddharth Khare,Ashok Khare
Counsel for Respondent :- C.S.C.,Mrigraj Singh
With
Case :- SPECIAL APPEAL No. - 104 of 2013
Appellant :- Pawan Kumar And Others
Respondent :- State of U.P. and Others
Counsel for Appellant :- Santosh Kumar Yadav,Ashok Khare,Vikas Budhwar
Counsel for Respondent :- C.S.C.,Shivam Yadav
With
Case :- SPECIAL APPEAL No. - 419 of 2013
Appellant :- Smt. Reeta Devi And Another
Respondent :- State of U.P. and Others
Counsel for Appellant :- Ravindra Sharma,Santosh Kumar Yadav
Counsel for Respondent :- C.S.C.,G.K. Gupta
With
Case :- SPECIAL APPEAL DEFECTIVE No. - 772 of 2012
Appellant :- Mahesh Kumar And Others
Respondent :- State of U.P. and Others
Counsel for Appellant :- Ram Sanehi Yadav
Counsel for Respondent :- C.S.C.,Shatish Kumar Yadav
With
Case :- SPECIAL APPEAL DEFECTIVE No. - 773 of 2012
Appellant :- Hari Shanker And Others
Respondent :- State of U.P. and Others
Counsel for Appellant :- Ram Sanehi Yadav,Siddharth Khare
Counsel for Respondent :- C.S.C.,S. Upadhyay
With
Case :- SPECIAL APPEAL DEFECTIVE No. - 786 of 2012
Appellant :- Devendra Kumar
Respondent :- State of U.P. and Others
Counsel for Appellant :- S.M. Pandey,Adarsh Singh,Indra Raj Singh,Siddharth Khare
Counsel for Respondent :- C.S.C.,A.K. Yadav,U.S. Upadhyay
With
Case :- SPECIAL APPEAL DEFECTIVE No. - 859 of 2012
Appellant :- Atul Kumar Yadav And Others
Respondent :- State of U.P. and Others
Counsel for Appellant :- Ajay Vikram Yadav,Siddharth Khare
Counsel for Respondent :- C.S.C.,A.K. Yadav,R.P. Singh
With
Case :- SPECIAL APPEAL DEFECTIVE No. - 951 of 2012
Appellant :- Md. Abais Khan And Others
Respondent :- State of U.P. and Others
Counsel for Appellant :- Ravi Sahu,Siddharth Khare
Counsel for Respondent :- C.S.C.
With
Case :- SPECIAL APPEAL DEFECTIVE No. - 1104 of 2012
Appellant :- Gaurav Anand
Respondent :- State of U.P. and Others
Counsel for Appellant :- Achal Singh Vats,Amresh Tripathi,Rajendra Prasad,Siddharth Khare
Counsel for Respondent :- C.S.C.,Shyam Krishna Gupta
With
Case :- SPECIAL APPEAL DEFECTIVE No. - 4 of 2013
Appellant :- Ahmad Raza Khand
Respondent :- State of U.P. and Others
Counsel for Appellant :- T.A. Khan,Siddharth Khare
Counsel for Respondent :- C.S.C.,Daya Ram Yadav
Hon'ble Munishwar Nath Bhandari, Acting Chief Justice
Hon'ble Ajai Tyagi, J.
(As per : Hon'ble Munishwar Nath Bhandari, A.C.J.)
Heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri Siddharth Khare, learned counsel for the petitioner-appellants and Sri Gopal Chandra Saxena, learned Standing Counsel for the State-respondents.
By this batch of appeals, the challenge is made to the judgment dated 25th July, 2012 whereby the writ petitions preferred by the petitioner-appellants were dismissed. The writ petitions were preferred to challenge the order dated 12th June, 2012 whereby Secretary, Basic Education Board, U.P. Allahabad directed for disengagement of Assistant Teachers appointed on compassionate ground. The appointments to the petitioner-appellants were on the terms and conditions contained in the Government Order dated 4th September, 2000. The petitioner-appellants were to acquire the BTC training qualification to get regular appointments. Some of the petitioner-appellants were sent for BTC training but pursuant to the order dated 12th June, 2012 of the Uttar Pradesh Basic Education Board, all the petitioner-appellants were disengaged on the ground that untrained teachers could not have been appointed after enforcement of the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 (for short "Rules of 2011").
The controversy raised in these appeals mainly rests on the Rules of 2011 and the Right of Children to Free and Compulsory Education Act, 2009 (for short "Act of 2009"). After the enactment of Act of 2009, and Notification dated 23rd August, 2010 under Section 23 of the Act of 2009, the appointment on the post of teachers could not have been given unless one has passed the Teachers Eligibility Test (for short "TET"). It is an admitted fact that none of the petitioner-appellants were possessing TET certificate prior to their appointment or giving effect to the Rules of 2011.
The learned Single Judge had considered the issue in detail and after referring to the provisions of Act of 2009 so as the Rules of 2011 apart from consideration of U.P. Basic Education Ordinance, 1972 and U.P. Basic Education (Teachers) Service Rules, 1981, dismissed the writ petitions.
Learned counsel for the appellants submits that the learned Single Judge has referred to the Rules of 2011 given effect from 27th July, 2011 and the Act of 2009 but failed to take note of Section 12-A of the National Council for Teacher Education Act, 1993 (for short "Act of 1993"). It is submitted that Amendment in the Act of 1993 by the Act No. 18 of 2011 was given effect since 1st June, 2012. The appointments of those teachers engaged in pre- primary, primary, upper primary, secondary and senior secondary etc. were saved even if they were not qualified prior to Amending Act of 2011 but has been ignored by the learned Single Judge. He submits that the petitioner-appellants were given appointment on compassionate basis knowing it well that they have not passed out TET, therefore, subsequently they could not have been disengaged either in reference to the Rules of 2011 or the Act of 2009. Their appointments were otherwise saved by Section 12-A of the Act of 1993.
Coming to the facts of this case, it is submitted that on earlier occasion special appeals were dismissed by the Division Bench but on a review petition, the judgment was recalled and matters were transmitted for fresh hearing. The judgment of the learned Single Judge is in ignorance of Section 12-A of the Act of 1993, brought by Amendment of 2011 with effect from 1st June, 2012. Accordingly, the case of the petitioner-appellants should have been governed by the said provision. The proviso to Section 12-A has given protection to all appointments made prior thereto despite such appointments not being in conformity with the qualifications specified in that regard.
It is submitted that in exercise of the powers given under Section 23(1) of the Act of 2009, the Central Government designated National Council for Teacher Education as academic authority for laying down qualifications of the teachers. The National Council for Teacher Education issued a notification on 23rd August, 2010 specifying the qualification for the teachers which includes TET. The TET is to be conducted by the State Government or Central Government as was made one of the qualification for the teachers. Section 12-A of the Act of 1993 was brought to save all those appointments made prior to Amendment which include even the requirement of TET certificate.
A reference of circular dated 12th June, 2012 issued by the State Government has been given to show requirement of TET with effect from 27th July, 2011 that is the date of enforcement of the Rules of 2011. The reference of the appointments made between 23rd August, 2010 to 27th July, 2011 and subsequently between 27th July, 2011 to 12th June, 2012 has been given. The compassionate appointments given prior to 27th July, 2011 were not affected rather incumbents were continued without the TET certificate while it was given effect on the appointments made subsequent 27th July, 2011. The circular was issued ignoring Section 12-A of the Act of 1993.
Learned counsel for the appellants has made reference of the judgment of the Apex court in the case of Basic Education Board, U.P. Vs. Upendra Rai and others, (2008) 3 SCC 432 and also in the case of Irrigineni Venkata Krishna Vs. Government of Andhra Pradesh, (2010) 15 SCC 319 to support his argument. He has also submitted that compassionate appointments are governed by the Government Order dated 4th September, 2000 which permits appointments of untrained teachers also. The appointment of the petitioner-appellants were in consonance to the aforesaid Government Order as otherwise U.P. Basic Education (Teachers) Service Rules, 1981 are totally silent with regard to compassionate appointment. The field of compassionate appointment is occupied by the Government Order dated 4th September, 2000 thus, the learned Single Judge should have considered the case in reference to the aforesaid apart from Section 12-A of the Act of 1993.
The appeals have been contested by the counsel for the non-appellants/respondents. It is submitted that learned Single Judge has considered all the issues in reference to the provisions applicable to the case. There is no error therein so as to cause interference rather the judgment of the learned Single Judge may be upheld. It has not only considered the provisions of the Act of 2009 but the provisions of the Act of 1993 apart from other provisions. The prayer is accordingly to dismiss the appeals.
We are not elaborately discussing the argument of the learned counsel for the non-appellants/respondents at this stage rather it would be discussed during the course of discussion of the arguments of the learned counsel for the appellants.
The judgment of the learned Single Judge was earlier tested by the Division Bench of this Court in the batch of appeals. The judgment of the learned Single Judge was upheld finding no infirmity therein. The judgment however reviewed and accordingly listed again for fresh consideration. The writ petition was filed involving various questions for consideration. However, the present appeals were pressed only in reference to Section 12-A of the Act of 1993.
The brief facts of the case shows that all the appellants were appointed in the month of August, 2011 on temporary basis. It was in terms of the Government Order where there was a condition to undergo BTC training. The Secretary, Basic Education Board, U.P. Allahabad however issued a circular on 12th June, 2012 and in pursuance to which an order was issued on 29th June, 2012 by the Basic Shiksha Adhikari for cancellation of appointment. It was challenged in bunch of writ petitions which were dismissed by the judgment dated 25th July, 2012. The case of the appellants is that they were appointed as untrained Assistant Teachers on temporary basis with a condition to undergo BTC training. The order of cancellation of appointment came while few appellants were sent for training. The circular dated 12th June, 2012 was not issued in reference to the BTC training but the Act of 2009 and the Rules of 2011. The appointment on the post of teachers was made subject to possession of certificate of TET. Finding appointments dehors the Act and Rules, the order was issued for their cancellation.
The issue now raised by the learned counsel for the appellants is in reference to Section 12-A of the Act of 1993 which, according to them, saves all the appointments made on or before giving effect to the Amendment of year 2011 in the Act of 1993. The provision aforesaid is quoted herein for ready reference:
"12-A. Power of Council to determine minimum standards of education of school teachers. - 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 recognised by the Central Government or a State Government or a local or 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 school 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 (35 of 2009)]."
The main provision gives power to the Council to determine the qualification by a Regulation. It is to maintain the standard of the schools. The first proviso to Section 12-A of the Act of 1993 protect those recruited as teachers under any rule, regulation or order of the Central Government, State Government or local or other authority, immediately before the commencement of the Amendment Act of 2011. It is despite non-fulfilment of the qualifications specified by the Council under its Regulation. The protection under the first proviso is to the qualification specified by the Council in the Regulation and obviously it should be under the Act of 1993 and the Regulation made thereunder. The Act of 1993 has no overriding effect on the Act of 2009. Section 12-A of the Act of 1993 cannot govern the provisions of the Act of 2009 in absence of non-obstante clause rather protection is in reference to their Regulation to provide qualification.
A Notification dated 23rd August, 2010 was issued by the Council to provide qualification under Section 23 of the Act of 2009 and not under the Act of 1993. Section 23 of the Act of 2009, as was existing in the year 2011 is quoted hereunder for ready reference:
"23. Qualifications for appointment and terms and conditions of service of teachers. - (1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher.
(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification:
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 be prescribed."
Sub-section (1) requires possession of the minimum qualifications for appointment as teacher. It is as laid down by the academic authority authorized by the Central Government.
It is a fact that in pursuance to the powers given to the Central Government, the NCTE was nominated as academic authority and notification dated 23rd August, 2010 was issued thereunder to provide the minimum qualification for appointment of teachers. The qualification of TET was provided under the said notification. Section 12-A of the Act of 1993 does not supersede the provisions of the Act of 2009 or the Rules made thereunder. The Act of 1993 is for maintaining standards of the education in the school. The Council under the Act of 1993 is to govern the training course and regulate the institution for the teachers training. The minimum qualification for the appointment of the teachers is now governed by the Act of 2009 and the Rules made thereunder. The Notification dated 23rd August, 2010 was published under the Act of 2009 to provide minimum qualification for the teachers.
The Notification issued on 23rd August, 2010 was made applicable without exception to provide minimum qualification for the teachers. The State of U.P. come out with the Rules of 2011 to provide the minimum qualification for the teachers. It was given effect from 27th July, 2011. It is admitted case of the petitioner-appellants that they were appointed on the post of Assistant Teachers subsequent to it. According to Rules of 2011 also one was required to be in possession of the certificate of TET which the petitioner-appellants were not possessing. The qualification prescribed under the Act of 2009 by the notification dated 23rd August 2010 has been enforced by all the States.
The first proviso to Section 23 of the Act of 2009 gives protection of five years to the teachers, who at the commencement were not possessing the qualification. It is not for those to be appointed after commencement. Section 12-A of the Act of 1993 cannot be read in conflict to the substantive provisions of the Act of 2009. It is also a fact that appellants have not qualified TET even now, as admitted by their counsel.
In view of the above, a candidate was not eligible to be appointed as Assistant Teacher, if he was not in possession of the certificate of TET.
The learned Single Judge has elaborately discussed the issue in regard to the operation of the Act of 2009 and the Act of 1993. Both the Acts operate separately. The Act of 1993 was enacted with an object to achieve planned and coordinated development for teacher education system throughout the country. It was to come out with the norms and standards for teachers education system and for the matters connected therewith. The functions of the Council are enumerated in Section 12 of the Act of 1993. The Act of 1993 contemplates recognition and permission of NCTE for running the courses or training for teachers education. Section 17 governs the course and training of teacher education with a stipulation that in violation thereof, grant of the degree/certificate would not be a valid qualification. The Council thus operate for recognition and all other related issues pertaining to the institutions for the training courses. The Act of 1993 does not operate in reference to the qualification of teachers for appointment though the Rules were brought to provide minimum qualification. The Apex Court in the case of State of U.P. and Others Vs. Bhupendra Nath Tripathi and Ors., (2010) 13 SCC 203 however clarified the aforesaid.
Article 41 in Part IV read with Article 45 of the Constitution of India provides for State endeavour to come out with free and compulsory education for the children and accordingly by Constitutional (86th Amendment) Act, 2002, the Parliament also recognized ''Right to Education' and after inserting Clause (k) in Article 51A vide Section 4 of Constitution (86th Amendment) Act, 2002, it enacted the Act of 2009 which was given effect from 1st April, 2010.
The qualification for appointment of teachers is now governed by the Act of 2009 and Rules made thereunder. Section 12-A of the Act of 1993 cannot to operate in conflict to the provisions of the Act of 2009 and notification issued therein. The field is now occupied by the Act of 2009 to provide educational qualification for appointment of teachers. Section 12-A of the Act of 1993 would not apply only for the reason that notification dated 23rd August, 2010 was issued by the Council. It was not under the Act of 1993 but the Act of 2009. It is by the Council as an academic authority. Under Section 23 of the Act of 2009, the Government of India had nominated Council as academic authority to lay down the qualification for appointment under the Act of 2009. The proviso to Section 12-A cannot apply dehors the Act of 2009 and Rules made thereunder. Therefore, we are not inclined to accept the argument of learned counsel for the petitioner-appellants that even if the appellants were not possessing TET certificate, their appointments should not have been cancelled in reference to the circular of the Government.
At this stage, it is to be clarified that even compassionate appointment cannot be given dehors the statutory provisions only in reference to the Government Order dated 4th September, 2000. The administrative order cannot stand in conflict with statutory provisions.
The elaborate discussion of all other issues has been made by the learned Single Judge and is not being challenged other than argument in reference to Section 12-A of the Act of 1993. Finding no merit in the arguments, appeals fail and are dismissed accordingly.
Order Date :- 9.9.2021
VMA
(Ajai Tyagi, J.) (Munishwar Nath Bhandari, A.C.J.)
