Shiv Ram Meena vs Govt. Of Nct Of Delhi & Ors.
2013 Latest Caselaw 5436 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        W.P.(C) No. 5249/2012
%                                                 25th November, 2013

SHIV RAM MEENA                                        ......Petitioner
                         Through:     Mr. M.K.Bhardwaj, Adv.


                         VERSUS

GOVT. OF NCT OF DELHI & ORS.                  ...... Respondents

Through: Mr. Arjun Pant, Adv. For R-1.

Mr. Pawan K.Khanna, Adv. for R-2.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? Yes

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, petitioner seeks appointment to the post of TGT

(Hindi) in the reserved category with the Nehru Adarsh Senior Secondary

School. Petitioner claims that he had the necessary qualifications of

graduation and B.Ed degree and accordingly he was called for the interview,

and having been selected in the interview he ought to have been given

appointment.

2. Respondent no.1 is the Director of Education. The school in question

namely Nehru Adarsh Senior Secondary School is represented through

respondent nos. 2 and 3. Counter-affidavits filed by these respondents show

that petitioner was not given appointment because as per the relevant

provisions Sections 2(a)&(n) & 23(1) of the Right of Children to Free and

Compulsory Education Act, 2009 there cannot be appointment of a teacher

in the school unless the teacher has Central Teachers Eligibility Test (CTET)

qualification, and since the petitioner did not have the CTET qualification,

petitioner was not appointed. Along with the counter-affidavit of respondent

no.1, the circular of the Govt. of NCT of Delhi dated 29.2.2012 has been

annexed as Annexure R-1 to show that schools are illegally appointing

persons as teachers in spite of not having the requirement of CTET

qualification as per the RTE Act, 2009 and schools have been directed to

ensure compliance of CTET requirement for appointing of a person as a

teacher in the school. This circular dated 29.2.2012 reads as under:-

"GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI DIRECTORATE OF EDUCATION

OLD SECRETARIAT, DELHI-110054

No.DE/15/Act/2010/7863 Date: 29/02/2012

Sub: Clarification Regarding Recruiting Only CTET Qualified Teachers in Aided Schools

In pursuance of sub-section (1) or Section 23 of the Right of Children to Free and Compulsory Education Act 2009, the National Council for Teacher Education, vide their Notification No.215 F.N.61-03/20/2010/NCTE(N&S) dated 23.08.2010, prescribed the clearance of Teacher Eligibility Test as a part of the minimum essential qualification for a person to be eligible for appointment as teacher to teach in the schools referred to in clause (n) of Section (2) of the aforesaid Act.

In accordance with the spirit of the RTE Act and the aforementioned Notification issued by the National council for Teacher Education, the Directorate of Education, vide Notification No. F4(6)(350)/E-IV/2011/621 issued on 07.10.2011 with the approval of Hon‟ble Lieutenant Governor of the GNCT Delhi, recognized only the Central Teacher Eligibility Test conducted by the Central Board of Secondary Education in lieu of State Eligibility Test for appointment of teachers to teach classes I to VIII in the schools referred in clause (n) of Section 2 of the RTE Act.

This Notification has already been published in the Delhi Gazette Extra Ordinary Part IV on 07.10.2011, and also circulated widely vide Circular No.F.N.DE4(6)(350)E- IV/2011/18875-18924 dated 26.12.2011.

Despite the aforesaid provision having come into force with its modification with effect from 07.10.2011, it has been observed that some schools are still considering application-for recruitment to various teaching posts-submitted by candidates who have not qualified the CTET, which act on their part is unlawful and warrants action as per the as per appropriate provisions of law.

It is, therefore, reiterated that with effect from the aforesaid notification, only CTET qualified teachers shall be employed by the government aided schools as referred to in clause (n) of Section 2 of the RTE Act 2009."

3. It is therefore clear that no one can be appointed as a teacher in

a school after the passing of the Right to Education Act, 2009 (in short „RTE

Act, 2009), read with the notification of National Council for Teacher

Education dated 23.8.2010, unless such a person has CTET qualification.

4. In the present case, the appointment which the petitioner claims

to the post of TGT(Hindi) is after the National Council for Teacher

Education notification dated 23.8.2010, and therefore, unless the petitioner

has CTET qualification, and admittedly which qualification the petitioner

did not have at the time of his being selected, he cannot be appointed to the

post of TGT (Hindi) in the respondent-school.

5. Counsel for the petitioner made three submissions before this

Court for grant of the relief claimed in the writ petition. The first is that the

advertisement in question did not mention the requirement of CTET

qualification and therefore rules of the game cannot be changed once the

selection process is set into motion. The second submission is that

Government of NCT of Delhi itself is employing teachers without CTET

qualifications, and therefore, petitioner should not be discriminated against,

and reliance for this purpose is placed upon the advertisement dated

13.9.2011 issued for recruitment of 2012 which does not have the

requirement of a CTET qualification for a teacher. The third submission

made is by placing reliance on the judgment of the Supreme Court in the

case of Y.V.Rangaiah and Others Vs. J.Sreenivasa Rao and Others 1983

SCC (L&S) 382 (1983) 3 SCC 284 that vacancies have to be filled in as per

the recruitment rules as prevalent at the time when vacancies occur and not

when the vacancies are filled in.

6. So far as the first argument, which is urged on behalf the

petitioner is concerned that rules of the games cannot be changed mid way

because the advertisement did not prescribe the requirement of CTET

qualification, in my opinion, this argument if accepted, the same will amount

to Court becoming a party to gross violation of the statutory provisions and

the statutory notifications as per the RTE Act, 2009. Once the law requires a

specific qualification for appointment, assuming that the authorities may

choose to wink and not comply with the requirement, cannot mean that

Court should direct appointments in violation of provisions of the statute. It

cannot be and could not be disputed before me that in terms of the RTE Act,

2009 and the notification reproduced above, for all appointments made after

2009, there was a requirement of CTET qualification for a teacher. Once

there is a statutory requirement, Court can give its imprimatur to an action

which will amount to violation of the statute and the statutory notifications.

I therefore, refuse to accede to the argument that merely because the

advertisement does not provide requirement of CTET qualification, simply

for that reason appointment should be made ignoring the requirement of

CTET qualification, and effectively ignoring the statutory provisions and

statutory notifications.

7. So far as the second argument is concerned, the same also

stands rejected in view of the above discussion of the first argument,

because, there cannot be estoppel against law. I must also observe that I am

doubtful if merely by the petitioner filing the recruitment notification of

2012 for appointment of teachers, teachers would have been appointed by

the Govt. of NCT of Delhi who do not have CTET qualification.

8. Therefore, the argument that CTET qualification can be

overlooked and can be so accepted by the Courts is not correct, and also I

cannot accept the argument that merely because advertisement of 2012

which is filed does not mention requirement of CTET qualification,

therefore, actual recruitment must have been done by the Govt. of NCT of

Delhi or by the schools governed by the Director of Education, of teachers,

who did not have CTET qualifications.

9. The third and the final argument urged on behalf of the

petitioner did carry some substance because it is the law that recruitment

should be as per the recruitment rules when the vacancies arise, however,

this argument will not hold good if there is statutory provision covering the

field. As per ordinary law and administrative rules of an employer there can

take place recruitments only as per the extant recruitment rules when the

vacancies occurred, however, this is not a universal rule and it has so been

held by the Supreme Court in the case of Deepak Agarwal & Anr. Vs. State

of Uttar Pradesh & Ors. (2011) 6 SCC 725 wherein the Supreme Court

referred to the earlier judgment in the case of Y.V.Rangaiah (supra) and

observed that once there are statutory rules, such statutory rules will prevail

and there is no universal rule of absolute application that vacancies are to be

filled invariably by the law existing when the vacancy arises. Once there are

statutory rules and statutory provisions which hold the field, the judgment in

the case of Y.V.Rangaiah (supra) will not apply and which will really apply

to administrative circulars and notifications. Of course, I may state that even

with respect to administrative circulars, rules and notifications, there may be

in the facts of the particular case entitlement of an employer to specifically

ask for a specific requirement although such requirement did not exist when

the vacancy had arisen inasmuch as it is not unknown to law that if the

legislature or an employer so wants, there can be a retrospective application

of a particular requirement as per the facts of each case, because, what is

really to be examined is that actually is there a violation of Article 14 of the

Constitution of India i.e whether or not action of the employer is arbitrary.

In the facts of a particular case, it may be possible that action of an employer

in requiring the retrospective application of a qualification may not be

arbitrary, however I need not observe in this regard one way or the other,

inasmuch as, in the present case we are concerned with statutory provisions,

statutory rules and statutory notifications which bar the appointment of a

person as a teacher in a school, unless such person has CTET qualification.

10. In view of the above, I do not find any merit in the petition, and

the same is dismissed, leaving the parties to bear their own costs.

NOVEMBER 25, 2013/ib                            VALMIKI J. MEHTA, J.