Uttarakhand High Court
WPSB/220/2022 on 14 September, 2022
Reserved
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
SRI JUSTICE VIPIN SANGHI, C.J.
AND
SRI JUSTICE R.C. KHULBE, J.
RESERVED ON :14.07.2022
DELIVERED ON : 14.09.2022
WRIT PETITION (S/S) No. 350 OF 2021 (1)
Between:
Nandan Singh and others. .......Petitioners
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/S) NO. 1222 OF 2021 (2)
Between:
Shweta Joshi ..........Petitioner
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/S) NO. 1305 OF 2021 (3)
Between:
Amit Shankar Bhadula and others. ..........Petitioners
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/S) NO. 383 OF 2022 (4)
Between:
Kedar Ram ..........Petitioner
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/S) NO. 629 OF 2022 (5)
Between:
Amanulla and others. ..........Petitioners
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/B) NO. 518 OF 2021 (6)
Between:
Mansoor Ahmad and others. ..........Petitioners
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/B) NO. 520 OF 2021 (7)
Between:
Sneha Rathour and others. ..........Petitioners
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/B) NO. 521 OF 2021 (8)
Between:
Sandeep Singh and others. ..........Petitioners
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/B) NO. 542 OF 2021 (9)
Between:
Mohd. Rashid and others. ..........Petitioners
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/B) NO. 591 OF 2021 (10)
Between:
Vishwanath and others. ..........Petitioners
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/B) NO. 592 OF 2021 (11)
Between:
Prashant Kumar and another ..........Petitioners
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/B) NO. 599 OF 2021 (12)
Between:
Satpal Singh and others. ..........Petitioners
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/B) NO. 610 OF 2021 (13)
Between:
Shivani Singh ..........Petitioner
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/B) NO. 619 OF 2021 (14)
Between:
Kuldeep Saini and others. ..........Petitioners
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/B) NO. 640 OF 2021 (15)
Between:
Anju and another. ..........Petitioners
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/B) NO. 198 OF 2022 (16)
Between:
Chinkal Choudhary and others. ..........Petitioners
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/B) NO. 220 OF 2022 (17)
Between:
Bhawana Durgapal and others. ..........Petitioners
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/B) NO. 228 OF 2022 (18)
Between:
Babita Karki and others. ..........Petitioners
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/B) NO. 262 OF 2022 (19)
Between:
Jagdish Prasad and others. ..........Petitioners
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/B) NO. 265 OF 2022 (20)
Between:
Gopal Singh Negi ..........Petitioner
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/B) NO. 280 OF 2022 (21)
Between:
Megha Kalkhuria and others. ..........Petitioners
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/B) NO. 298 OF 2022 (22)
Between:
Shashi and others. ..........Petitioners
and
State of Uttarakhand and another. ....Respondents
WRIT PETITION (S/B) NO. 302 OF 2022 (23)
Between:
Aasmeen and others. ..........Petitioners
and
State of Uttarakhand and others. ....Respondents
WRIT PETITION (S/B) NO. 315 OF 2022 (24)
Between:
Lokesh Kumar and another ..........Petitioners
and
State of Uttarakhand and others. ....Respondents
WRIT PETITION (S/B) NO. 370 OF 2022 (25)
Between:
Shivani Chauhan ..........Petitioners
and
State of Uttarakhand and others. ....Respondents
&
WRIT PETITION (S/B) NO. 381 OF 2022 (26)
Between:
Naresh Ram ..........Petitioner
and
State of Uttarakhand and others. ....Respondents
Counsel for the petitioners : Mr. C.D. Bahuguna, learned Senior
Counsel assisted by Mr. Mahavir Kohli,
Mr. Niranjan Bhatt, Mr. Naveen
Chandra Tiwari, Mr. Pankaj Tangwan,
Mr. Mohd. Safdar, Mr. M.S. Bhandari,
Mr.A.M. Saklani, Ms. Neetu Singh, Mr.
Vinay Kumar, Mr. Alok Dalakoti, Mr.
Syed Kashif Jafri, Mr. B.S. Negi, Mr.
Devesh Upreti, Mr. Ravi Shankar
Kandpal, Mr. V.P. Bahuguna, Mr.
Rajendra Tamta, Mr. Anil Kumar, Mr.
Rajendra Arya and Mr. Parikshit Saini,
learned counsel.
Counsel for the respondents : Mr. S.S. Chauhan, learned Deputy
Advocate General for the State of
Uttarakhand.
Mr. Yogesh Pacholia, learned counsel
for National Council for Teacher
Education.
Mr. Shashank Upadhyay, learned
counsel for National Institute of Open
Schooling.
Mr.Saurav Adhikari and Mr. S.C.
Dumka, learned Standing Counsel for
the Union of India.
Ms. Neeti Rana, learned counsel for
the intervener in WPSS No. 350 of
2021.
Mr. A.S. Rawat, learned Senior
Counsel assisted by Mr. Prasanna
Karnataka, learned counsel for the
applicants in Impleadment Application
of 2021.
Mr. K.P. Upadhyay, learned Senior
Counsel assisted by Mr. Hemant Pant,
learned counsel for the applicants in
Impleadment Application No. 2 of
2021 filed in WPSS No. 350 of 2021.
Upon hearing the learned Counsel, the Court
made the following
COMMON JUDGMENT : (per Sri Vipin Sanghi, C.J.)
The petitioners have preferred the present
writ petitions to assail the communication / order
bearing No. 236/XXIV-A/1/2021/18/2018 T.C. dated
10.02.2021, issued by the Secretary, Department of
Elementary Education, Uttarakhand, Dehradun,
whereby he recalled the earlier order bearing No.
103/XXIV-A-1/2-21-18/2018 T.C. dated 15.01.2021.
2. By the aforesaid order dated 15.01.2021, the
said Secretary had conveyed the decision of the
Government of Uttarakhand that such candidates, who
have got the D.El.Ed training from the National
Institute of Open Schooling (NIOS) in the State through
Open and Distance Learning (ODL) for eighteen months
in the years 2017-19, and who have fulfilled other
prescribed standards and eligibility conditions for the
post of Assistant Teacher (Primary), along with passing
TET First, are also permitted to participate in the
selection process of filling up the vacancies of Assistant
Teachers (Primary) pursuant to the advertisements
issued district-wise. The effect of the decision contained
in the impugned communication dated 10.02.2021 was
to render such candidates ineligible for participation in
the process of selection to fill-up the vacancies of
Assistant Teachers (Primary) in the State.
3. The case of the petitioners is that they were
initially appointed as Assistant Teachers in private
unaided Schools in different districts of the State of
Uttarakhand. They were employed as Assistant
Teachers during the period 2014-17. They state that
they have experience of teaching students of primary
schools from Classes 1 to 5. The petitioners possess
Degree of graduation, and they have cleared the
Teachers Eligibility Test (TET). They have also
obtained the Diploma, as recognized by the National
Council for Teacher Education (NCTE), in elementary
education through ODL mode, conducted by NIOS. The
petitioners, therefore, claim that they are eligible for
being considered for appointment as Assistant Teachers
(Primary) in Government Primary Schools situated in
the State of Uttarakhand. They have assailed the
impugned order, since the petitioners and other
similarly situated persons, possessing of Diploma of
D.El.Ed. from NIOS through ODL mode, have been
barred from applying for the post of Assistant Teachers
(Primary) to be employed in the Government Primary
Schools. This action of the respondents is stated to be
arbitrary and violative of Articles 14 and 16 of the
Constitution of India.
4. At this stage itself, we may observe that the
present dispute has arisen since the Diploma course of
D.El.Ed, conducted by NIOS, undergone by the
petitioners, was of the duration of eighteen months,
and not two years, and the same was undergone
through ODL mode, and not through the physical
mode. While the petitioners claim that NCTE has
recognized the said D.El.Ed course undergone by them
as equivalent to the two-year Diploma in D.El.Ed, the
respondent-State seeks to draw a distinction between
the D.El.Ed. Diploma obtained by the petitioners, and
the D.El.Ed. Diploma obtained by others in the normal
course, which is a two-year course. On that premise,
the petitioners are sought to be barred from
participating in the process of recruitment as Assistant
Teachers to be employed in the Government Primary
Schools.
5. We may now take note of some of the
background facts leading up to the present dispute.
6. Article 21A of the Constitution of India, which
was inserted by way of the Eighty-sixth Constitutional
Amendment Act, 2002, provided that the State should
provide free and compulsory education to all children of
the age of six to fourteen years, in such manner as the
State may, by law, determine. In fulfillment of this
Constitutional goal, the Parliament enacted 'The Right
of Children to Free and Compulsory Education Act,
2009' (the Act). Section 3 of the Act states that every
child of the age of six to fourteen years shall have the
right to free and compulsory education in a
neighbourhood school till the completion of his or her
elementary education. Section 3(2) guarantees that no
child shall be liable to pay any kind of fee or charges or
expenses, which may prevent him or her from pursuing
and completing the elementary education.
7. To ensure that the elementary education
provided to the targeted children is of a minimum
standard, Section 23 of the Act, inter alia, stipulated
that any person possessing such minimum qualification,
as laid down by an academic authority authorized by
the Central Government by notification, shall be eligible
for appointment as a teacher. The academic authority
notified by the Central Government, without dispute, is
the NCTE.
8. The minimum qualification prescribed by the
NCTE for teachers to be eligible for appointment to teach
Classes 1 to 8 in a School referred to in Section 2(n) of the
said Act was laid down by the NCTE vide Notification dated
23rd August, 2010. The minimum qualification prescribed
for teachers to teach Classes 1 to 5 reads as follows:-
"1. Minimum Qualifications.-
(i) Classes I-V
(a) Senior Secondary (or its equivalent) with at least
50% marks and 2-year Diploma in Elementary
Education (by whatever name known).
OR
Senior Secondary (or its equivalent) with at least
45% marks and 2-year Diploma in Elementary
Education (by whatever name known), in accordance
with the NCTE (Recognition Norms and Procedure),
Regulations 2002.
OR
Senior Secondary (or its equivalent) with at least
50% marks and 4-year Bachelor of Elementary
Education (B.El.Ed.).
OR
Senior Secondary (or its equivalent) with at least
50% marks and 2-year Diploma in Education
(Special Education).
AND
(b) Pass in the Teacher Eligibility Test (TET) to be
conducted by the appropriate Government in
accordance with the Guidelines framed by the NCTE
for the purpose."
(emphasis supplied)
9. Being mindful of the fact that the Act seeks
to address the needs of lacs and lacs of children all
over the country, for which adequate human resource
may not be readily available, Section 23(2) of the Act
empowered the Central Government to relax the
minimum qualification required for appointment as a
teacher in certain circumstances, for a period not
exceeding five years. The teachers, who were not
possessed of the minimum qualifications, laid down
under sub-section (1) at the commencement of the Act,
were mandated to acquire such minimum qualifications
within a period of five years.
10. It appears that despite extensions granted by
the Central Government to enable the States to
improve the lot of elementary school teachers, the
States were not able to fulfill the requirements. They
were not able to ensure that the teachers meet the laid
down standards of minimum qualification.
Consequently, the Government piloted, and the
Parliament enacted 'The Right of Children to Free and
Compulsory Education (Amendment) Act, 2017' (The
Amendment Act, 2017), which was made effective
retrospectively from 01.04.2015. By this amendment,
the second proviso was inserted to Section 23(2), and
a final outer limit of time was fixed, within which the in-
service elementary school teachers-who did not
possess the minimum qualification as laid down under
sub-section (1) of Section 23 of the Act, were
mandated to obtain the minimum qualification, failing
which they could not continue to serve as elementary
school teachers. They were granted one last
opportunity to acquire the same by 31st March, 2019.
Post this amendment, Section 23 reads as follows:-
"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.
Provided further that every teacher appointed or
in position as on the 31st March, 2015, who does
not possess minimum qualifications as laid down
under sub-section (1), shall acquire such
minimum qualifications within a period of four
years from the date of commencement of the
Right of Children to Free and Compulsory
Education (Amendment) Act, 2017.
(3) The salary and allowances payable to, and the
terms and conditions of service of, teachers shall be
such as may be prescribed."
(emphasis supplied)
11. Soon after the Bill-which led to the
enactment of the Amendment Act was passed by the
parliament on 02.08.2017, on the following date i.e.
03.08.2017, the Ministry of Human Resource
Development, Government of India addressed a
communication to all the States, wherein the
Government stated, inter alia, as follows:-
"This is regarding training of untrained in-service
elementary teachers in the Govt./Govt.
Aided/Unaided-Private Schools. It is apprised that
the Amendment to the Section 23(2) of the RTE
Act to extend the period for such training to 31st
March, 2019 has been passed by the Parliament.
2. Further, it is reiterated that this will be the
last chance to acquire the requisite minimum
professional qualifications. Any teacher in the
aforementioned schools, who does not have the
minimum qualifications mandated under the RTE
Act, 2009, would not be allowed to continue in-
service beyond 1st April, 2O19, and procedure for
dismissal shall be initiated against such teachers.
3. A broad strategy to complete the training
of all such in-service untrained teachers by 31st
March, 2019 is proposed by MHRD. The following
action is required to be initiated urgently at your
end:
Action to be taken by States/UTs:
i. States and UTs will be responsible for
ensuring that all in-service untrained teachers
(Government Schools and Private Schools) in the
State and UTs acquire the minimum qualifications
required under the RTE Act, 2009 within the
proposed extended period till 31st March, 2019,
through the ODL programme of NIOS.
ii. ...
iii. ...
iv. It is mandatory for all in-service untrained
teachers to undertake D.El.Ed. programme only
through ODL on NIOS (unless already enrolled
and undergoing training in a recognised Teacher
Education Institute (TEI) prior to the
amendment).
v. State Govt. will reach out to the School
Principals/concerned school authorities of all
Govt./Govt. Aided/ Private Schools and inform
them about this extension of deadlines and
publish large scale advertisements for wider
coverage.
vi. States must undertake an awareness
programme amongst the teachers also, clearly
indicating that this would be the last opportunity
for application and enrolment to the course failing
which their services will be terminated w.e.f. 1st
April, 2019 and also advertise about this last
opportunity on a large scale.
vii. ...
viii. ...
ix. ..
x. ...
xi. ...
xii. ...
xiii. ...
xiv. Teachers who do not fulfill the minimum
eligibility requirement for taking admission in
D.El.Ed. programme i.e., 50% in Class 12, will
have to join NIOS and re-appear for the Class
12th exam to achieve the minimum qualification.
They would however be eligible for provisional
admission in D.El.Ed. programme of NIOS,
subject to them acquiring 50% marks in Class 12
before completing the D.El.Ed programme of
NI0S. This would facilitate such teachers to
pursue the programmes concurrently.
xv. ...
xvi. ..
NIOS will do the following:
xvii. NIOS will be disseminating clear guidelines
and protocols for training of untrained teachers
through the Online D.El.Ed. programme.
xviii. NIOS has appointed a Nodal Officer for
each State and UT and this Nodal Officer will be
based in that particular State and UT only.
xix. NIOS will contact the State/UT for
structuring of Contact Classes. States/UTs are
expected to facilitate this process.
xx. NIOS will conduct a training
programme/workshop by mid-August in order to
guide and orient the States and UTs on
translation of material, preparing audio-visual
content on the material and all issues related to
this training.
xxi. NIOS will share the content of D.El.Ed.
syllabus with the States by 1st September so that
the translations of the content could begin at the
state level. The course materials will be provided
by NIOS but translation in local language will
have to be done by the respective State and UT.
xxii. For conduct of contact programmes, NIOS
will provide necessary funds to the SCERTs who
will be responsible for arranging the study
centres and requisite teacher educators.
4. The timelines along with key milestones to ensure
that the training of all in-service untrained
teachers is completed by 31st March, 2019, are
detailed in the table below:
Timeline Key Milestones
th
By 10 August, Appointment of a Nodal Officer
2017 by every State and UT and NIOS.
NIOS has already appointed
State-wise Nodal Officers and the
list is enclosed.
By 10th August, Development of the portal by
2017 NIOS.
Between 1st All States and UTs to issue
August, 2017 to advertisements in newspapers
and conduct wide outreach
14th August, 2017 programmes informing all
teachers about the opportunity
of acquiring the minimum
qualifications provided through
NIOS failing which their services
will be terminated w.e.f. 1st
April, 2019.
By 16th August, Workshop by NIOS to orient
2017 States and UTs.
By 20th August, States and UTs will submit
2017 complete database of all in-
service untrained teachers in
Government and Private
Schools to NIOS.
Between 16 th Admission open-All Teachers to
August, 2017 to apply.
15th
September,2017
2nd October, 2017 Upload first batch of material by
NIOS SWAYAM portal.
3rd October, 2017 Start of the Course.
First term-3rd October, 2017 to
18th June, 2018.
Second Term-25th June, 2017 to
31st March, 2019.
5. A copy of the Discussion paper on Strategy or
training of untrained in-service teachers in elementary
schools is enclosed for your reference. You are
requested to take urgent and concerted action at your
end in order to ensure that all in-service untrained
teachers, acquire the minimum qualifications as
prescribed by the NCTE, but within the stipulated time
line i.e., 31st March, 2019. Your strategy with regard
to its implementation may kindly be communicated to
this office latest by 10th August, 2017."
12. On the same day, the Ministry of Human Resource
Development, Department of School Education and
Literacy, Government of India addressed another
communication to the Chairman, NIOS, conveying the
decision that NIOS will be over all in-charge of conducting
the online D.El.Ed. programme through the SWAYAM
portal. The course will start from 3rd October, 2017, and
would continue till 31st March, 2019-which was the
extended period under the amended Act to acquire the
minimum qualifications. The responsibilities that NIOS was
expected to discharge, and the time schedule were also
clearly set-out in the said communication. In tandem with
the decision taken by the Government to ensure fulfillment
of the legislative intent reflected in the Amendment Act,
the NCTE on 22nd September, 2017 issued a recognition
order. The relevant extract thereof reads as follows:-
"TO BE PUBLISHED IN GAZETTE OF INDIA PART-III,
SECTION-IV
File No. NRC/NCTE/NIOS/Recognition/275th (Part-3) Meeting/2017
Dated: 22nd September, 2017
RECOGNITION ORDER
WHEREAS, the matter of recognition of the Project
Proposal of National Institute of Open Schooling
(NIOS) Noida for D.El.Ed. (ODL) programme through
SWAYAM Portal of MHRD for training of in-service
untrained teachers was considered by NRC and NRC
overserved as follows:-
AND WHEREAS, the NCTE has received directions
under Section-29 of the NCTE Act, 1993 from the
Ministry of Human Resource Development vide their
letters no. 11-15/2017-EE-10 dated 21.08.2017 and
04.09.2017. The project proposal for recognition of
Diploma in Elementary Education (D.El.Ed.)
programme through ODL mode has been submitted by
National Institute of Open Schooling (NIOS) to NCTE
Headquarter). The proposal is for conducting on-line
D.El.Ed. programme through the SWAYAM portal of
the Ministry of HRD for the in-service untrained
teachers at elementary level working in Government /
Government-aided and unaided private schools in the
country.
AND WHEREAS, the said project proposal has been
considered by an expert committee constituted by
NCTE vide order dated 19.09.2017. The Committee
considered the project and found that the NIOS is
adequately prepared to conduct the programme and
the curriculum proposed therein meets the
requirement of the D.El.Ed. (ODL) programme of
NCTE.
AND WHEREAS, in view of above mentioned directions
of the Ministry of Human Resource Development
under Section-29 of the NCTE Act, 1993 and after
considering the recommendation of the Expert
Committee, Chairperson NCTE in exercise of his
powers under clause 12 of the NCTE
(Recognition Norms and Procedure) Regulations,
2014, granted relaxation vide NCTE Hqrs letter
No. NCTE-Regul011/166/2017-US(Regulation)-
HQ dated 21/09/2017 & letter dated 22.09.2017
to the following provisions in the NCTE
Regulations-2014 for ensuring that the
directives of the MHRD for implementing the
amendment to the RTE Act, 2009 are duly
fulfilled.
I. Any provision related to on-line submission of
the application on NCTE Application portal;
II. Any provision related to the duration of the
programme so as to reduce it to 18 months
instead of 2 years and the requirement of 6
months internship to be subsumed within
the duration of 18 months;
III. Any requirement of minimum eligibility for
admission to D.El.Ed. programme, i.e. 50%
marks in class 12, to the extent that those who
do not fulfill this requirement shall be allowed to
take provisional admission to the programme
subject to their acquiring 50% marks before
completion of the D.El.Ed. programme of NIOS.
IV. Any provision in the Regulations to enable NIOS
to administer the programme through SWAYAM
portal of MHRD;
V. Any provision prescribing the number and nature
of study centres to enable NIOS to cater to
around 11 lakh untrained teachers;
VI. Allow NIOS to operate study centres manned by
staff (academic and others) as per instructions of
MHRD to enable NIOS to complete the training of
in-service teachers numbering around 11 lakh by
31.03.2019.
VII. Any provision in Regulations restricting the intake
capacity in D.El.Ed. (ODL) programme to enable
NIOS to train the any required number of
untrained teachers.
VIII. Since almost all the states and union territories
of the country are involved in the exercise of
training untrained teachers, there shall be no
requirement of seeking no objection certificates
from individual States / UTs.
IX. Besides the above relaxation, NRC may also
consider imposing a condition of regular
inspection / monitoring of the programme through
a mechanism of inspection of centers by senior
NIOS personnel or any agency deployed for the
purpose, on random basis during the entire
duration of the project, so as to cover all states at
least once every 9 months. Report of such
inspections must be submitted to the MHRD.
AND WHEREAS, After having considered all the above
facts and figures, the NRC considered the case in its
275th (Part-3) decided that recognition be granted to
the National Institute of Open Schooling (NIOS), Noida
for D.El.Ed. (ODL) programme through SWAYAM
Portal of MHRD for training of in-service untrained
teachers under Section 14 of NCTE Act, 1993 and
clause 7(16) of NCTE Regulations, 2014 subject to
fulfilling the following conditions.
I. The duration of the said programme shall
be 18 months instead of 2 years including the 6
months internship.
II. The requirement of minimum eligibility for
admission to D.El.Ed. programme, i.e. 50% marks in
class 12, to the extent that those who do not fulfill
this requirement shall be allowed to take provisional
admission to the programme subject to their acquiring
50% marks before completion of the D.El.Ed
programme of NIOS.
III. NIOS to administer the programme through
SWAYAM Portal of MHRD.
IV. NIOS shall operate study centres manned by
staff (academic and others) as per instructions of
MHRD to enable NIOS to complete the training of in-
service untrained teachers numbering around 11 lakh
by 31.03.2019 all over India.
V. There shall be no restriction to the number and
nature of study centres to enable NIOS to train the
required number of untrained teachers.
VI. The intake capacity at each centre shall be
maximum 100.
VII. Regular inspection / monitoring of the
programme shall be conducted through a mechanism
of inspection of centres by senior NIOS personnel or
any agency deployed for the purpose, on random
basis during the entire duration of the project, so as
to cover all states at least once every 9 months.
Report of such inspections must be submitted to the
MHRD.
VIII.This programme shall be only for those in-
service untrained teachers in Govt. / Govt. Aided
/ Private unaided Schools appointed on or
before 10/08/2017.
IX. All the provisions in the NCTE Act & Regulations,
2014 other than those relaxed under clause 12 of
NCTE Regulations, 2014, will be applicable.
NOW THEREFORE, in exercise of the powers vested
under Section 14(3)(a)/15(3)(a) of the NCTE Act,
1993, the Northern Regional Committee hereby grants
recognition to National Institute of Open Schooling
(NIOS) Noida, U.P. under clause 7(16) of NCTE
(Recognition Norms & Procedure) Regulations, 2014
for D.El.Ed. (ODL) programme through SWAYAM
Portal of MHRD for training of in-service untrained
teachers subject to fulfillment of the conditions
mentioned above.
By order
(Satish Gupta)
Regional Director (I/C)
The Manager
Govt. of India Press,
Department of Publication, (Gazette Section)
Civil Lines, Delhi--110 054."
(emphasis supplied)
13. Thus, by the recognition order aforesaid, what the
NCTE did was to grant recognition to the NIOS for
conducting D.El.Ed. (OD) programme through SWAYAM
Portal of MHRD for training of in-service untrained teachers
subject to certain conditions. The salient conditions with
which we are concerned were the following:-
"I. The duration of the said programme shall be 18
months instead of 2 years including the 6 months
internship.
VIII. This programme shall be only for those in-
service untrained teachers in Govt. / Govt. Aided /
Private unaided Schools appointed on or before
10/08/2017."
14. In the same vain, NIOS issued an office order
on 16.02.2018 to conduct D.El.Ed. Project for the in-
service teachers. The office order shows that about
13,63,865 trainee teachers undertook the training at an
expenditure of over Rs. 68.19 crores.
15. The petitioners are also amongst those in-
service teachers, who undertook the said D.El.Ed.
course for untrained in-service teachers, through the
ODL mode, and they have been awarded the Diploma
in D.El.Ed.
16. The submission of the learned Senior Counsel
for the petitioners is that the impugned decision taken
by the Government of Uttarakhand is contrary to the
decision of the Central Government, whereunder in-
service elementary teachers were granted the
opportunity to attain the qualification of two-year
D.El.Ed. Programme of NIOS while continuing with their
service.
17. Learned Senior Counsel submits that the
impugned decision is also in the teeth of the
recognition order issued by the NCTE on 22nd
September, 2017. The NCTE granted relaxation to the
provisions of the NCTE Regulations, 2014 for ensuring
that the directives of the MHRD for implementing the
amendment to the RTE Act, 2009 are fulfilled. One of
the relaxations, pointedly granted, was "any provision
related to the duration of the programme so as to
reduce it to 18 months instead of 2 years and the
requirement of 6 months internship to be subsumed
within the duration of 18 months". The recognition
order makes reference to the 275th meeting of the
Northern Regional Committee, wherein it decided that
the recognition be granted to the National Institute of
Open Schooling (NIOS), Noida for D.El.Ed. (ODL)
programme through SWAYAM Portal of MHRD training
of in-service untrained teachers under Section 14 of
NCTE Act, 1993 and clause 7(16) of NCTE Regulations,
2014, subject to fulfillment of several conditions,
including, that "the duration of the said programme
shall be 18 months instead of 2 years including the 6
months internship". He further submits that this
recognition order was also marked to the Manager,
Government of India Press, Department of Publications,
(Gazette Section) for being gazetted.
18. Learned Senior Counsel submits that the
stand taken by the respondent-Government of
Uttarakhand was also the stand taken by the State of
Bihar, and the State of Tripura, which has already been
judicially considered and rejected by the two High
Courts, namely, the Patna High Court and the Tripura
High Court. He has placed on record these decisions.
He submits that in Sanjay Kumar Yadav and others
vs. State of Bihar and others, CWJC No. 19842 of
2019, decided on 21.01.2020 by a learned Single
Judge of the Patna High Court, the said High Court
rejected and quashed a similar order / letter issued by
the Government of Bihar, which stated that service of
teachers / candidates working in Government Schools /
Government aided/ private unaided Schools, who have
completed D.El.Ed. training through National Institute
of Open Schooling (NIOS) during their service, will not
be valid / considered for selection of primary teachers
in the Government of Bihar on the basis of the letter
issued by the NCTE on 06.09.2019. The Patna High
Court, after referring to the aforesaid Recognition Order
dated 22.09.2017, proceeded to hold as follows:-
"15. Thus, I find that on such misrepresentation
and misreading of the clarification issued by the
NCTE, the Director, Primary Education has
illegally issued direction that the persons who
had obtained D.El.Ed. course duly run for 18
months by NIOS are not eligible for appointment
on the post of teachers in primary schools and
thus, the letter as contained in Annexure-11 is
illegal, unsustainable and violative of Article
14 of the Constitution. Accordingly, Annexure-11
is set aside.
16. The writ petitions are allowed. The
respondents are directed to allow the petitioners
to apply within one month and consider the case
of the petitioners for appointment on the post of
primary teachers."
19. In Sri Raju Nama and others vs. the
State of Tripura and others, W.P.(C) No. 87 of
2020, decided along with W.P. (C) Nos. 88 of 2020
and 102 of 2020 on 12/13.03.2020, the then Chief
Justice of the Tripura High Court dealt with the same
issue. The petitioners before the Tripura High Court,
inter alia, sought a direction for issuance of Tripura
Teachers' Eligibility Test 2018 Certificate in their
favour. The Authorities in the State of Tripura had the
same reservations, as were entertained by the State of
Bihar-and are also entertained by the State of
Uttarakhand, namely, that the duration of the D.El.Ed.
course undergone by the in-service elementary
teachers through ODL mode with NIOS was of 18
months, whereas, for being eligible to undertake the T-
TET course, the D.El.Ed. course must be of minimum
duration of 24 months. The decision of the Patna High
Court in Sanjay Kumar Yadav (supra) was relied
upon by the petitioners before the Tripura High Court.
The learned Judge referred to the recognition order
issued by the NCTE dated 22.09.2017 granting
recognition to NIOS, Noida for conduct of the D.El.Ed.
(ODL) programme for training of in-service untrained
teachers, subject to fulfillment of the stipulated
conditions. The learned Judge went on to observe as
follows:-
"15. From the above materials, it can be clearly seen
that the body authorized to prescribe the minimum
standards of education qualifications for a trained
teacher and one authorized to prescribe the minimum
norms for imparting education in such programme,
has recognized the ODL programme offered by NIOS
for D.El.Ed. course. This was subject to certain specific
conditions including that the duration of the said
programme would be of 18 months instead of two
years including 6 months of internship. The
background leading to such recognition order would
indicate that such limited relaxation was granted in
the duration of the course particularly, bearing in
mind the decision of the Government of India, Ministry
of Human Resource Development to specify NIOS as
the agency to impart the training in the said course
and to complete the training of in-service teachers
numbering to close to 11 lakhs across the country
latest by 31.03.2019.
16. NCTE was thus dealing with an extraordinary
situation where on one hand the Government of India
had declared its decision not to extend the period for
acquiring minimum educational qualifications for a
trained teacher beyond 31.03.2019. At the same time,
across the country there were lakhs of teachers, who
had yet not completed such training. The time left
before 31.03.2019 would not permit imparting such
training over full two years of duration. It was
therefore that while granting permission to NIOS to
crunch the programme within 18 months, other
safeguards were provided.
17. If we accept the opposition of the State
Government to the validity of the qualifications
acquired by the petitioners on the ground that the
programme duration was 18 months against that
envisaged of a full term of 24 months, the entire
purpose of the NCTE in recognizing such course as
onetime extraordinary measure looking to the unusual
emergent situation, would frustrate. In plain terms,
the State Government has no authority to overrule or
discard the decision of NCTE in the field. In any case,
the State Government policy cannot be at loggerheads
with that of the Union Government and its statutorily
constituted body in the legislative field which falls in
the concurrent list."
20. The learned Judge further observed that in
anticipation that the petitioners would acquire the
minimum qualifications of D.El.Ed. certificate, they
were allowed to undertake the T-TET course. They
have duly completed the D.El.Ed. certificate course.
They must therefore be allowed to enjoy the fruits of
their having cleared the T-TET examination also. The
objection of the State Government that the basic
qualification of D.El.Ed. was obtained by the petitioners
from an Institute, which offered the course over
duration of 18 months instead of 24 months envisaged
as per the Regulations, was overruled.
21. Learned Senior Counsel for the petitioners
has also relied upon the Communication dated
16.12.2020, issued by the Ministry of Education,
Department of School Education and Literacy,
addressed to the Chairperson, NCTE on the subject
"Request of TET, D.El.Ed. by NIOS cleared candidates
of Uttarakhand State to allow them to apply for new
vacancies of Assistant Teachers declared by the state in
line of the State of Bihar". The said communication
was issued in the light of the representation / letter
dated 16.11.2020, received from an Association of
elementary teachers, like the petitioners, who had
completed the D.El.Ed. from NIOS through ODL mode,
while they were in service. The said Association sought
the relief that they may be made eligible to apply for
the new vacancies declared by the State in line with the
State of Bihar. After making reference to the aforesaid
decision of the Patna High Court, which the
Government of India and the NCTE had accepted and
decided not to appeal against, the NCTE was requested
"to issue a clarification to all states and UTs those
candidates who have completed the D.El.Ed.
course of NIOS (ODL mode) may be given
opportunity to apply for fresh recruitment at par
with the other D.El.Ed. candidates subject to
adherence to all the other criteria and
qualification requirements, such as passing of TET
etc., as per the NCTE notification dated
23.08.2010 (as amended from time to time) and any
other as mandated by the State. This would avoid
unnecessary future references /court cases on this
issue. A copy of the clarification issued may also be
forwarded to this Ministry." (emphasis supplied)
22. In pursuance of the aforesaid communication
from the Government of India, the NCTE issued a
Communication on 06.01.2021, addressed to the Chief
Secretaries of all States/ Union Territories Government,
stating that "the NCTE has already decided to
accept the verdict of the Hon'ble Patna High Court
in the case of Sanjay Kumar Yadav & Ors, Vs. the
State of Bihar & Ors (Civil Writ Jurisdiction Case
No. 19842 of 2019). Therefore you are request to
consider all those candidates who have
completed the D.El.Ed course of NIOS (ODL
mode) and may be given opportunity to apply for
fresh recruitment at par with the other D.El.Ed
candidates subject to adherence to all the other
criteria and qualification requirements, such as
passing of TET etc., as per the NCTE notification
dated 23.08.2010 (as amended from time to time)
and any other as mandated by the State."
(emphasis supplied)
23. Learned counsel for the petitioners submits
that the Government of Uttarakhand also accepted the
decision conveyed by the NCTE in its letter dated
06.01.2021 vide its communication bearing No.
103/XXIV-A-1/2021-18/2018 T.C. dated 15.01.2021.
The said communication was addressed to the Director,
Primary Education, Uttarakhand. Learned counsel
submits that on 29.12.2020, the Government of
Uttarakhand issued an advertisement inviting
applications from the eligible candidates to fill-up the
vacancies of Assistant Teacher-Grade-III (Pay-scale
35400-112400 Level-6) in Government Primary Schools
of District Pauri under the provisions prescribed in the
Government Primary Education (Teacher) Service
Rules, 2012 in continuation of the letter No. /Prav.Shi.-
Two(2)/419-2019/9950/2020-21 dated 9th November,
2020 of the Director, Primary Education, Uttarakhand,
Dehradun. This communication, inter alia, states that
every kind of selection process would be done as per
the provisions prescribed in the Uttarakhand Primary
Education (Teacher) Service Rules, 2012 (as amended).
24. The petitioners submitted their applications
in response to the aforesaid advertisement. However,
on 10.02.2021, the respondent-Government of
Uttarakhand issued the impugned order cancelling the
earlier order dated 15.01.2021 on the same ground,
namely, that the in-service elementary teachers had
undergone only of 18 months and not of 24 months'
D.El.Ed. programme conducted by NIOS through ODL
mode. Therefore, they were not treated to be eligible.
The submission of the learned Senior Counsel for the
petitioners is that the Government of Uttarakhand is
bound by the decision taken by the Central
Government to authorize NIOS to conduct the D.El.Ed.
18 months' programme through ODL mode, and is also
bound by the recognition granted to the said course by
the NCTE. He submits that "education" is covered by
Entry-25 of List-III to the Seventh Schedule to the
Constitution. Since the Parliament has not only
legislated by framing the NCTE Act, but the Central
Government has also taken an executive decision on
the subject, the State Government cannot act contrary
to the said decision of the Central Government.
Learned Senior Counsel has referred to the decision of
the Division Bench of this Court in State of
Uttarakhand and others vs. Harish Chandra and
another, Special Appeal No. 2389 of 2018,
decided on 27.04.2018. In this case, the writ
petitioners-who were the respondents in the Special
Appeal, had undergone the two-year D.El.Ed.
programme with TET qualification. They challenged the
condition imposed by the Government of Uttarakhand
with the insertion of Rule 9(ka)(ii) and Rule 15(i) in the
Uttarakhand Government Elementary Education School
(Teachers) Service Rules, 2012, and Rule 9(ka)(ii)-as
amended by Uttarahand Government Elementary
Education School (Teachers) Service (Amendment)
Rules, 2013 dated 20.07.2013. The effect of the
impugned Rule was that, to be eligible to apply for a
post of elementary teacher in the State of Uttarakhand,
the candidate should have obtained two-year D.El.Ed.
Diploma from the Institutes in the State of
Uttarakhand. The learned Single Judge allowed the
writ petition, and directed that the applications of the
writ petitioners, who had obtained the D.El.Ed. Diploma
from outside the State of Uttarakhand, be accepted.
The Division Bench rejected the Special Appeal
preferred by the State of Uttarakhand, while observing
as follows:-
"4. ...NCTE is a body under Section 23 of the Right
to Education Act. It has laid down qualifications.
There is no requirement in the qualifications, which
have been prescribed, that the same should be one,
which is obtained only from institutions in the State.
As long as it is recognized by NCTE, it may not be
open to the State to stipulate, by its Rules, that only
the qualifications obtained from the State alone will be
accepted. The learned Single Judge has noticed that
this is not a case, where a higher qualification is fixed.
In such circumstances, it may not be open to the
State to stipulate for the matter as provided.
Therefore, on this basis, we see no reason to
interfere."
25. Learned counsel has also placed reliance on
the decision of the Supreme Court in State of U.P. vs.
Shiv Kumar Pathak, (2018) 12 SCC 595. The
Supreme Court was examining the question of validity
of the decision taken by the State of U.P. in prescribing
qualifications for recruitment of teachers at variance
with the guidelines of the NCTE dated 11th February,
2011 under Section 12(d) read with Section 12A of the
NCTE Act, 1993 and Section 23 of the Right of Children
to Free and Compulsory Education Act, 2009 on the
ground of repugnancy of State law with the Central law
on a subject falling in concurrent list. The State of U.P.
took a decision on 26th July, 2012, which also led to
amendment of the U.P. Basic Education (Teachers)
Service Rules, 1981 on 31st August, 2012, to the effect,
that instead of giving weightage to the TET marks (in
tune with the guidelines issued by the NCTE for conduct
of Teachers Eligibility Test (TET) and for providing
weightage to the marks in the said test for recruitment
of teachers), the criteria of "quality point marks" as
prevalent earlier, was adopted. This amendment was
challenged as it rendered the rules inconsistent with
the NCTE guidelines. The writ petitions preferred by
the petitioners were dismissed by the learned Single
Judge. The Division Bench, however, allowed the intra-
Court Appeals. This is how the matter landed before
the Supreme Court.
26. It was contended on behalf of the State of
U.P. before the Supreme Court that "while it was
permissible for the Central Government to lay down
eligibility qualification for appointment of a teacher for
elementary education by virtue of Section 23 of the
RTE Act, the NCTE could not lay down any guideline so
as to affect the power of a State to prescribe norms for
selection of a teacher consistent with the qualifications
under Section 23 of the RTE Act".
27. The original writ-petitioners, however, relied
upon on the fact that the subject of education falls
under Entry 25 of List III of Seventh Schedule to the
Constitution. Therefore, by virtue of Article 254 of the
Constitution, the law made by the Parliament would
prevail over any law made by the State. The NCTE Act
had been enacted by the Parliament to achieve
'planned and coordinated development of the teacher
education system'. The NCTE was empowered to issue
guidelines under Sections 12 and 12A for ensuring
planned and coordinated development of teacher
education and also to lay down guidelines in respect of
minimum qualifications for a person to be employed as
a teacher. Under Section 23 of the Right to Education
Act, the Central Government had authorised the NCTE
as the "academic authority" to lay down minimum
qualification for a person to be eligible for appointment
as a teacher. The Supreme Court rejected the appeal
preferred by the State of U.P. while observing as
follows:-
"16. There is no manner of doubt that the
NCTE, acting as an 'academic authority'
under Section 23 of the RTE Act, under the
Notification dated 31st March, 2010 issued by
the Central Government as well as under
Sections 12 and 12A of the NCTE Act, was
competent to issue Notifications dated 23rd
August, 2010 and 11th February, 2011. The
State Government was under obligation to
act as per the said notifications and not to
give effect to any contrary rule. However,
since NCTE itself has taken the stand that
notification dated 11th February, 2011 with regard
to the weightage to be given to the marks
obtained in TET is not mandatory which is also a
possible interpretation, the view of the High Court
in quashing the 15th Amendment to the 1981
Rules has to be interfered with. Accordingly, while
we uphold the view that qualifications
prescribed by the NCTE are binding,
requirement of weightage to TET marks is not a
mandatory requirement."
(emphasis supplied)
28. Thus, learned Senior Counsel for the
petitioners concluded his submission by submitting that
in the light of the aforesaid well settled legal position,
the action of the respondent-State in recalling its
earlier decision dated 15.01.2021 was illegal.
29. On the other hand, the submission of Mr.
S.S. Chauhan, learned Deputy Advocate General for the
State, who appears on behalf of respondent Nos. 1 and
2, is that the minimum qualifications are required to be
notified by the Central Government under Section
23(1) of the Act. He submits that the Central
Government has not published in the Official Gazette
the minimum qualification, namely, D.El.Ed. obtained
from NIOS through the ODL mode under the 18
months' programme as the minimum qualification for
an Assistant Teacher (Primary).
30. We may, at this stage itself, deal with this
submission. Section 23 of the Act has been reproduced
here-in-above. At the cost of repetition, we reproduce
Sub-section (1) of Section 23, which reads as follows:
"23(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".
31. On a plain reading of the above provision, it
is clear that the reference to the Notification by the
Central Government is not to the minimum
qualifications, but to the academic authority authorised
by the Central Government which is empowered to lay
down the minimum qualifications to be eligible for
appointment as a teacher. This is the plain meaning of
Section 23(1) of the Act. It is not even the
respondents' case that the NCTE is not the authorised
academic authority under Section 23(1) of the Act. The
above submission of learned counsel for the petitioner
is contrary to the observations of the Supreme Court in
Shiv Kumar Pathak (supra), which we have quoted
above. The minimum qualification has to be laid down
by the academic authority authorized by the Central
Government, and not by the Central Government itself.
It is the academic authority which has to be authorized
by notification. It does not stand to reason that when
an academic authority has been authorized by the
Central Government, the Central Government should
lay down the minimum qualification of teachers, and
not the authorized academic authority. Therefore, we
reject this submission of the respondents.
32. The next submission of leaned Deputy
Advocate General for the State is that the Recognition
Order dated 22.09.2017 has not been published in the
Official Gazette, and consequently, the relaxation of the
NCTE Regulations -2014 qua the 18 month D.El.Ed.
programme conducted by NIOS through the ODL mode
has not taken effect. He submits that the NCTE had
earlier issued the Notification under Section 23(1) of
the Act laying down the minimum qualifications
required for a teacher to teach Classes I to VIII, and
the minimum qualifications for teachers to be eligible to
teach Classes I to V were those set out in the
Notification dated 23.08.2010, which have been
extracted in para 8 here-in-above. His submission is
that if the minimum qualifications have to be relaxed,
the same can be done only through a Notification
published in the Gazette. It is, thus, argued that the
State Government is not obliged to take cognizance of
the Recognition Order dated 22.09.2017, and it is the
Notification dated 23.08.2010, which is binding and
enforceable. That notification prescribes the minimum
qualification as a 2-year Diploma in Elementary
Education.
33. Learned counsel for the interveners has also
opposed the present petition. He submits that the
NCTE framed the NCTE (Determination of Minimum
Qualifications for Persons to be recruited as Education
Teachers and Physical Education Teachers in Pre-
primary, Primary, Upper Primary, Secondary, Senior
Secondary and Intermediate Schools or Colleges)
Regulations, 2014. He submits that under Regulation 4
of these Regulations, the qualification for recruitment of
teachers in any recognised school imparting Pre-
primary, Primary, Upper Primary, Secondary, Senior
Secondary and Intermediate Schools or Colleges
imparting Senior Secondary education shall be as given
in the First and Second Schedules annexed to these
Regulations. Regulation 5 contains the power to relax.
It states that where the Council is satisfied, on receipt
of reference from the concerned State Government that
special circumstances exist warranting relaxation of
some of the provisions of the Regulations, it may grant
relaxation of that provision to such extent, for such
time period and subject to such conditions and
limitations as it may consider necessary, in a just and
equitable manner, provided that no relaxation shall be
granted under these Regulations with regard to the
minimum qualifications for appointment of teachers for
Level 3 (Classes I to VIII) as specified in the First
Schedule. Thus no relaxation can be granted by the
Council in respect of the minimum qualifications
required of teachers of Level 3, who have to teach
Classes I to VIII, as specified in First Schedule. He also
places reliance on Section 14(4) of the NCTE Act.
Section 14 deals with the aspect of recognition of
institutions offering course or training in teacher
education, and Sub-section (4) thereof states that
every order granting recognition to an institution for a
course or training in a teacher education shall be
published in the Official Gazette and communicated in
writing for appropriate action to such institution and to
the concerned examining body, the local authority or
the State Government and the Central Government.
34. Learned Senior Counsel for the interveners
has placed reliance on the decision of the Supreme
Court in S. Satyapal Reddy and others Vs
Government of A.P. and others, (1994) 4 SCC
391, to submit that it is open to the State Government
to prescribe higher qualification for appointment of
elementary school teachers in the State of
Uttarakhand. His submission is that the eligibility
qualifications prescribed by the NCTE are the minimum
qualifications, and it is, therefore, open to the State of
Uttarakhand to prescribe that the D.El.Ed. education /
programme should have been undergone for a
minimum period of two years, and that the D.El.Ed.
programme undergone by the in-service teachers
through ODL mode, conducted by NIOS, is not
considered sufficient.
35. In response to the aforesaid submissions,
learned Senior Counsel for the petitioners has placed
reliance on the Regulations framed by the NCTE, called
the National Council for Teacher Education (Recognition
Norms and Procedure) Regulations, 2014, dated
28.11.2014. Regulation 9 stipulates that every
institution offering the programmes shown in the table
shall have to comply with the norms and standards for
various teacher education programmes as specified in
Appendix 1 to Appendix 15. At serial No. 9 of the table
"Diploma in elementary education programme through
Open and Distance Learning System leading to Diploma
in Elementary Education (D.El.Ed.)" is enlisted which
refers to Appendix 9, where in the norms and
standards for the said programme, and the
qualifications have been laid down. Regulation 12 of
these Regulations contains the power to relax, which
reads as follows:
"12. Power to relax. -(1) On the
recommendations of the Central
Government, or State Government, or Union
Territory Administration concerned, or in
cases for removal of any hardship caused in
adhering to the provisions in these
regulations, keeping in view the
circumstances peculiar to the said
Governments or Union Territory, it shall be
open to the Chairperson, for reasons to be
recorded in writing, to relax any of the
provisions of these regulations, in respect of
any class or category of institutions, in the
concerned State or Union Territory, or of
Central Government institutions to such a
extent and subject to such conditions, as
may be specified in the order and decisions
shall be brought to the notice of the Council
in the next meeting. In exceptional cases
and for reasons to be recorded in writing, the
Chairperson, shall be competent to relax any
of the provisions of these regulations and the
related norms and standards subject to its
ratification by the Council."
(emphasis supplied)
36. Learned Senior Counsel for the petitioners
submits that the duration of the aforesaid course is
stipulated in Clause 3 of Appendix 9, which is two years
or more. Learned Senior Counsel for the petitioners
submits that the Recognition Order dated 22.09.2017
specifically refers to Clause 12 of the NCTE
(Recognition Norms and Procedure) Regulations, 2014,
and, therefore, reliance placed by the learned counsel
for the interveners on the Notification dated
12.11.2014, notifying the NCTE (Determination of
Minimum Qualifications for Persons to be recruited as
Education Teachers and Physical Education Teachers in
Pre-primary, Primary, Upper Primary, Secondary,
Senior Secondary or Intermediate Schools or Colleges)
Regulations 2014, is of no avail. The Recognition
Norms and Procedure Regulations, 2014, framed by
NCTE, are later in point of time, and specifically deal
with the situation at hand, and, therefore, they are the
Regulations, which are applicable and attracted to the
situation.
37. The submission of the learned Deputy
Advocate General that the recognition order dated
22.09.2017 has not been published in the official
gazette and, consequently, the relaxation of the NCTE
Regulations, 2014 qua the 18 months' DLED
programme conducted by the NIOS through the ODL
mode, has not taken effect, has no merit.
38. Section 29 of the NCTE Act states that the
Council shall, in the discharge of its functions and
duties under this Act, be bound by such directions on
questions of policy as the Central Government may
give in writing to it from time to time, and the decision
of the Central Government as to whether a question is
one of policy or not shall be final. One cannot lose
sight of the fact that it was the Central Government,
which piloted the Bill in the Parliament for amendment
of the Right of Children to Free and Compulsory
Education Act, 2009, which led to the enactment of the
Right of Children to Free and Compulsory Education
(Amendment) Act, 2017. It was the policy of the
Central Government, which received Parliamentary
assent to mandate that every teacher appointed, or in
position as on the 31st March, 2015, who does not
possess minimum qualifications, as laid down by the
academic authority, namely the NCTE, shall acquire
such minimum qualifications by 31st March, 2019.
39. With a view to achieve the said objective, the
Central Government addressed the Communication
dated 03.08.2017 to all States as taken note of
hereinabove in Paragraph 11. The Central Government
rolled-out a complete roadmap with a view to achieve
the objective of the in-service teachers acquiring the
minimum qualifications prescribed by the NCTE-the
authorised academic authority. The minimum
qualifications prescribed by the NCTE for Assistant
Teachers (Primary), qualified to teach Classes 1 to 8,
include the two-year Diploma in Elementary Education.
On the same day, i.e. on 03.08.2017, the Central
Government also directed the NIOS to conduct the
online DLED programme through the Swayam portal,
which would start from 3rd October, 2017, and
continue till 31st March, 2019. Thus, the policy of the
Central Government to enable the acquisition of the
minimum qualification by the in-service teachers by
providing 18 months' training through the ODL mode
by the NIOS was binding on the NCTE. The Recognition
Order dated 22nd September, 2017 refers to the
directions received by the NCTE from the Ministry of
Human Resource Development vide its letter dated
21.08.2017. It refers to the proposal for recognition of
Diploma in Elementary Education (D.EL.ED.
Programme) through the ODL mode submitted by the
NIOS. The Expert Committee of the NCTE considered
the said proposal, and found that the NIOS is
adequately prepared to conduct the programme and
the curriculum proposed therein meets the requirement of
the D.El.Ed. (ODL) programme of NCTE. The Chairperson
of the NCTE exercised his powers under Regulation 12
of the NCTE (Recognition Norms and Procedure)
Regulations, 2014 to grant relaxation in the provisions
of the NCTE Regulations, 2014 for ensuring that the
directives of the MHRD for implementing the
amendment to the RTE Act, 2009 are duly fulfilled.
40. We have already quoted hereinabove
Regulation 12 of the NCTE (Recognition Norms and
Procedure) Regulations, 2014. The said Regulation
contains the power to relax vested in the Chairperson
of the NCTE. Reading of Regulation 12 does not reveal
that there is any prescription that the order of
relaxation, or, for that matter, an order of recognition,
should be notified in the official gazette.
41. We find force in the submission of the
learned Senior Counsel for the petitioners that it is the
NCTE (Recognition Norms and Procedure) Regulations,
2014, which are relevant for the present purpose.
Regulation 9 thereof stipulates that every institution
offering the programme shown in the table shall have
to comply with the norms and standards for various
teacher education programme as specified in Appendix
1 to Appendix 15. At Serial No. 9 of the table "Diploma
in elementary education programme through Open and
Distance Learning System leading to Diploma in
Elementary Education (D.El.Ed.)" is enlisted, which
refers to Appendix 9, wherein the norms and standards
for the said programme / qualifications have been laid
down.
42. For the aforesaid reasons, reliance placed by
the learned Senior Counsel for the interveners on the
Notification dated 12.11.2014, which notified the NCTE
(Determination of Minimum Qualifications for Persons
to be recruited as Education Teachers and Physical
Education Teachers in Pre-primary, Primary, Upper
Primary, Secondary, Senior Secondary or Intermediate
Schools or Colleges) Regulations, 2014, is of no avail.
The NCTE (Recognition Norms and Procedure)
Regulations, 2014 having been framed on 28.11.2014
are later in point of time to the Regulations relied upon
by the learned counsel for the interveners, which were
framed on 12.11.2014.
43. In our view, it is the later Notifications, which
would prevail, also because, they specifically deal with
the D.El.Ed. qualification.
44. Thus, merely because the Recognition Order
may not have been notified in the official gazette, it
does not lose its force.
45. Reliance placed by the learned counsel for
the interveners on Section 14(4) of the NCTE Act is
misplaced, since that deals with the aspect of
Notification in the official gazette of an order granting
recognition to the institution for conduct of a course or
training in teacher education. This is not the issue
before us.
46. The submission of the learned counsel for the
interveners, founded upon the judgment of the
Supreme Court in S. Satyapal Reddy (supra), is also
misplaced. This is for the reason that the 18 months'
D.El.Ed. programme undergone by the petitioners, and
other in-service teachers through the ODL mode as
conducted by the NIOS is not, and cannot be
considered as a lower qualification when compared to
the two-years' D.El.Ed. programme.
The Recognition Order, inter alia, states that "Any
provision related to the duration of the programme so
as to reduce it to 18 months instead of 2 years and the
requirement of 6 months internship to be subsumed
within the duration of 18 months;"
47. Thus, what the Recognition Order dated 22nd
September, 2017 does is to recognize the 18 months'
D.El.Ed. programme undergone by the in-service untrained
teachers of Government /Government aided / private
unaided Schools, through the ODL mode conducted by the
NIOS as equivalent to and same as the two-year D.El.Ed.
programme.
48. Consequently, it cannot be said that the 18
months' D.El.Ed. programme undergone by in-service
teachers through the ODL mode as conducted by the NIOS
is a lower or inferior qualification as compared to the two-
year D.El.Ed. programme. The two-year D.El.Ed.
programme cannot be considered as a higher qualification.
49. We also find merit in the submission of the
learned Senior Counsel for the petitioners that the
matter is squarely covered by the decisions of the
Patna High Court and the Tripura High Court taken note
of hereinabove. We respectfully agree with the said
decisions.
50. We are also of the view that in the light of
the judgment of the Supreme Court in Shiv Kumar
Pathak (supra), the State Government is bound to act
as per the directions and orders issued by the NCTE,
which is constituted under a Central legislation, and is
recognized by the Central Government as the academic
authority under Section 23 of the RTE Act. The
qualifications prescribed by the NCTE for teachers, inter
alia, teaching primary classes are binding on the State
Government and, therefore, the State Government
cannot insist that the Assistant Teachers (Primary) in
the State should have undergone the two-years'
D.El.Ed. programme. In respect of the in-service
teachers, who have undergone the 18 months' D.El.Ed.
programme conducted by the NIOS through the ODL
mode, the State Government cannot seek to
discriminate by debarring them from offering their
candidatures for the posts of Assistant Teachers
(Primary) in the State of Uttarakhand. The impugned
Communication / Order bearing No. 236/XXIV-
A/1/2021/18/2018 T.C. dated 10.02.2021, issued by
the Secretary, Department of Elementary Education,
Uttarakhand, Dehradun, therefore, cannot be
sustained, and we, accordingly, quash the same.
51. We allow all the writ petitions, and hold that
the 18 month D.El.Ed. Training Diploma conducted
through the ODL mode in elementary education by the
NIOS is a valid Diploma for applying against the regular
posts of Assistant Teachers (Primary) in the State of
Uttarakhand. The respondents shall, therefore,
consider the candidatures of the petitioners for the said
posts on the basis of the applications made by them
pursuant to the advertisement issued by the
Department of Elementary Education, Government of
Uttarakhand, Dehradun. The petitioners shall be
entitled to the costs quantified at Rs. 2,000/- each to
be paid by the respondent No. 1, i.e. the State of
Uttarakhand within four weeks.
________________
VIPIN SANGHI, C.J.
____________
R.C. KHULBE, J.
Dt: 14th September, 2022
Rathour
