Uttarakhand High Court

Pushpa vs State Of Uttarakhand And Others on 15 May, 2023

RESERVED
HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE RAVINDRA MAITHANI
Special Appeal No. 78 of 2022

Pushpa
........Appellant
Versus

State of Uttarakhand and others
........Respondents

Counsel for the petitioner (s) : Mr. Abhilash Nainwal, the learned
counsel for the appellant in SPA
No. 78 of 2022.

Counsel for the respondent(s) : Mr. C.S. Rawat, the learned
Chief Standing Counsel for the
State of Uttarakhand.

Mr. Yogesh Pacholia, the
learned counsel for the NCTE.

Mr. U.K. Uniyal, learned Senior
Counsel assisted by Mr. Abhijay
Negi, the learned counsel for the
interveners in SPA No. 78 of
2022 joined through video
conferencing.

Mr. Prabhakar Joshi, learned
counsel holding brief of Mr. D.K.
Joshi, learned counsel for the
interveners in SPA No. 78 of
2022.

With

Special Appeal No. 105 of 2022

Suman Lal and others
........Appellants
Versus

State of Uttarakhand and others
........Respondents
2

Counsel for the appellants : Dr. Kartikey Hari Gupta, the learned
counsel assisted by Mr. Rafat Munir Ali
and Ms. Irum Zeba, learned counsel
for the appellants

Counsel for the respondent(s) : Mr. C.S. Rawat, the learned
Chief Standing Counsel for the
State of Uttarakhand.

Mr. Yogesh Pacholia, the
learned counsel for the NCTE.

With

Writ Petition (S/B) No. 213 of 2022

Tara Ram and others
........Petitioners
Versus

State of Uttarakhand and others
........Respondents

Counsel for the petitioners : Dr. Kartikey Hari Gupta, the
learned counsel assisted by Mr.
Rafat Munir Ali and Ms. Irum
Zeba, learned counsel for the
petitioners
Counsel for the respondent(s) : Mr. C.S. Rawat, the learned
Chief Standing Counsel for the
State of Uttarakhand.

Mr. Yogesh Pacholia, the
learned counsel for the NCTE.

With

Writ Petition (S/B) No. 671 of 2022

Rinky and others
........Petitioners
Versus

State of Uttarakhand and others
........Respondents
Counsel for the petitioners : Mr. Ravi Shankar Kandpal, the
learned counsel for the
petitioners
3

Counsel for the respondent(s) : Mr. C.S. Rawat, the learned
Chief Standing Counsel for the
State of Uttarakhand.

Mr. Yogesh Pacholia, the
learned counsel for the NCTE.

The Court made the following:

Judgment : (per: Hon'ble Ravindra Maithani, J.)

Since common question of law is involved in all

these cases, they are decided by this common judgment.

2. The core question, which falls for consideration in

these matters is as to whether the State Government is

under obligation to act, as per the notification dated

12.11.2014 issued by the National Council for Teacher

Education ("the NCTE"), under Section 32 sub Section (2)

clause (dd) read with Section 12A of the National Council for

Teacher Education Act, 1993 ("the 1993 Act") or the State

Government may frame Rules contrary to the notification

issued by the NCTE, prescribing minimum education

qualifications for recruitment of teachers in schools.

Special Appeals FACTS

3. Special Appeal Nos. 105 of 2022 and 78 of 2022

arise from common judgment dated 31.03.2022, passed in

Writ Petition (S/S) No. 1211 of 2021, Om Prakash Gaur and

another Vs. State of Uttarakhand and another and Writ
4

Petition (S/S) No. 6 of 2022, Suman Lal and others Vs. State

of Uttarakhand and others ("the petitions"). In the petitions,

the petitioners have sought quashing of the press note dated

12.03.2021 issued by the Uttarakhand Subordinate Service

Selection Commission ("Commission") to the extent it

permitted the non-B.Ed. candidates to apply for the post of

Assistant Teacher, LT Grade (Arts), pursuant to the

advertisement dated 13.10.2022, as also seeking directions

that the Commission may be directed to conclude the

selection process, as per the advertisement issued by it.

4. It has been the case of the petitioners that the

Commission issued an advertisement on 13.10.2021,

inviting applications for appointment to the post of Assistant

Teacher, LT Grade, including Teachers, LT Grade (Arts). The

last date for submission of the application form was

04.12.2020. But, in the midway, on 12.03.2021, the

Commission issued a press release permitting the

non-B.Ed. candidates also to apply for the post and the time

for submission of the application forms was also extended.

It is the case of the petitioners that once recruitment

process has been initiated, such amendments in the Rules

cannot be made.
5

5. The State as well as the Commission filed

objections in the writ petitions.

6. According to the State, the Rules were amended

and notified in the Official Gazette on 25.02.2021 by which

the eligibility criteria for the post was changed and the

requirement of B.Ed. was omitted. As per the Commission,

the Rules were amended on 25.02.2021. Therefore,

amended qualification was included in the present selection

process and pursuant to order dated 15.03.2021 of the

Hon'ble Uttarakhand High Court passed in Writ Petition

(PIL) No. 33 of 2021, Ravinder Jugran Vs. State and

another, the time for submitting application was extended.

7. By the impugned judgment dated 31.03.2022,

it was held that the impugned notification is not bad in the

eyes of law. It was held that the candidates, who

participated in the examination process cannot

subsequently claim that the process was unfair; the press

release did not take away the eligibility of any candidate

from participating in the process; it has not prejudiced their

interests; the rights of the petitioners were never crystallised

and it cannot be said that equal opportunity was not given

to such candidates, who could not apply earlier. The
6

judgment dated 31.03.2022 passed by the learned Single

Judge has been impugned in these special appeals.

Writ Petitions

8. In the Writ Petition (S/S) Nos. 213 of 2022 and

671 of 2022, the validity of Uttarakhand Subordinate

(Trained Graduate Category) (Amendment) Service Rules,

2021 ("the 2021 Amendment") has been put to challenge. It

is the case of the petitioners that, the 2021 Amendment is

not in consonance with the 1993 Act and the National

Council for Teacher Education (Determination of Minimum

Qualifications For Persons to be Recruited as Education

Teachers and Physical Education Teachers in Pre Primary,

Primary, Upper Primary, Secondary and Senior Secondary

or Intermediate Schools or Colleges) Regulations, 2014

("2014 Regulations"), therefore, they are illegal. The

petitioners have also sought directions for quashing the

press release dated 12.03.2021 issued by the Commission

with the directions to the Commission to continue with the

process as per the advertisement dated 13.10.2022, strictly,

in accordance with the 2014 Regulations.

9. In its counter affidavit, the State of Uttarakhand

has, in fact, not responded to the questions raised by the

petitioners. It has been the case of the State that the
7

appointments are made under the provisions of the

Uttarakhand Subordinate Education (Trained Graduate

Grade) Service Rules, 2014 ("the State Service Rules 2014")

as amended in the year 2019. These Rules were further

amended on 25.02.2021. Pursuant to the amendment dated

25.02.2021, the Commission issued a press note dated

12.03.2021. It has further been the case of the State that,

Para 5 of 2014 Regulations, which is related to the power to

relax, is not applicable in the instant matter for the simple

reason that the Para 5(b) of the notification dated 23.8.2010

issued by NCTE specifically states that for Art Education,

Craft Education, Home Science, Work Education etc., the

existing eligibility norms prescribed by the State

Government and the other school managements shall be

applicable until such time the NCTE lays down the

minimum qualification in respect of such teachers.

According to the State, in the instant matter the NCTE has

not prescribed the minimum eligibility criteria for the post of

LT Grade (Arts), therefore, the State Government invoking

the power given under Para 5(b) of the notification dated

23.8.2010, amended the Rules and thereby the minimum

requirement of having B.Ed. had been deleted from the

minimum qualifications.
8

10. In its short counter affidavit, it has been the

stand of NCTE that for recruiting Assistant Teachers (Arts),

NCTE has not prescribed any qualification. In para 6 of the

counter affidavit, filed on 25.02.2023 by Ms. Deepti

Swaroop, Regional Director, NRC, NCTE, following is

stated:-

"That with regard to the qualification of recruitment

of Assistant Teachers for Arts in Drawing and

Painting/Drawing Design/Technical Arts/Painting (Fine

Art)/(Painting) (Visual Art), it is to state that NCTE has

not prescribed any qualification in this regard.

As per Regulation 5 (b) of the NCTE Notification No.

F.No. 61-1/2011/NCTE(N&S) dated 29.07.2011, for

teachers of Art Education, Craft Education, Home

Science, Work Education, etc. the existing eligibility

norms prescribed by the State Governments and other

school managements shall be applicable till such time the

NCTE lays down the minimum qualifications in respect of

such teachers. The copy of the notification is attached

with this counter affidavit as ANNEXURE A.

The NCTE, with the above averments, is filing this

counter affidavit, same may kindly be taken on record and

take appropriate decision in the present matter to resolve

the controversy."

11. The Commission in its affidavit simply states that

the eligibility criteria and qualification has been fixed by
9

various departments concerned. In the instant matter,

according to the Commission, Rules were amended by the

State Government, which were just made applicable by the

Commission at the time of selection.

12. The NCTE had made reference to the 2010

Notification, therefore, on 22.03.2023, this Court sought a

specific affidavit from NCTE on the following points:-

"(i) The Notification dated 23.08.2010, which

was subsequently amended by the

Notification dated 29.07.2011 by the NCTE

under the 2009 Act prescribes minimum

qualification for a person to be appointed as

a teacher in Classes I to VIII. How could

these Notifications prescribe minimum

qualification for a person to be eligible for

appointment as a teacher in

Secondary/High School (Classes IX & X)?

(ii) Why the minimum qualification as prescribed

in 2014 Regulations, framed under 1993

Act, shall not be made applicable for

recruiting teachers in Secondary/High

School (Classes IX & X)?"
10

13. In compliance thereof, an affidavit dated

27.04.2023 has been filed by Anjani Kumar, Director, NRC

NCTE. Para 5 of it, is as hereunder:

"That in 2014 the NCTE issued the NCTE
Determination of Minimum Qualification 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 notified on 12.11.2014 as
amended from time to time laying down the qualification
from Pre-Primary to Senior Secondary/Intermediate (XII).

The NCTE Notification dated 23.08.2010 is also an
integral part of the Notification dated 12.11.2014 for
minimum qualification for classes I to VIII. The
notification dated 12.11.2014 provides the following
qualifications for education teachers for classes IX to
X.......................................................................................
.........................................................................................

.........................................................................................

In the aforesaid regulation, there exists no separate post of Lecturer of Art Education for Classes IX & X.

.........................................................................................

........................................................................................"

ARGUMENTS

14. Learned counsel for the writ petitioners would

submit that the 2021 Amendment made by the State of

Uttarakhand is contrary to 2014 Regulations notified on

12.11.2014 by the NCTE under the 1993 Act. Therefore, it is

illegal and deserves to be declared as such.

15. It is also submitted that after publication of the

advertisement, change in the Rules cannot be made and if

any such change in the Rules is introduced, it cannot be

made applicable to the ongoing recruitment process.

16. In support of his contention learned counsel has

placed reliance on the principles of law, as laid down in the

case of State of Bihar and others vs. Mithilesh Kumar,

(2010) 13 SCC 467.

17. In the case of Mithilesh Kumar (supra), the

Hon'ble Supreme Court observed as hereunder:-

"19. Both the learned Single Judge as also the Division Bench rightly held that the change in the norms of recruitment could be applied prospectively and could not affect those who had been selected for being recommended for appointment after following the norms as were in place at the time when the selection process was commenced. The respondent had been selected for recommendation to be appointed as Assistant Instructor in accordance with the existing norms. Before he could be appointed or even considered for appointment, the norms of recruitment were altered to the prejudice of the respondent. The question is whether those altered norms will apply to the respondent.

20. The decisions which have been cited on behalf of the respondent have clearly explained the law with regard to the applicability of the rules which are amended and/or altered during the selection process. They all say in one voice that the norms or rules as existing on the date when

the process of selection begins will control such selection and any alteration to such norms would not affect the continuing process, unless specifically the same were given retrospective effect."

18. After filing the response affidavit, on 27.04.2023

by the NCTE, the learned State counsel admits that the

State Government should not have amended the State

Service Rules, 2014 by way of 2021 Amendment. Learned

counsel would also submit that, the State Government shall

conduct examination as per the NCTE Regulations.

19. On behalf of the intervener, Mr. U.K. Uniyal

would submit that in paras 4, 5 and 6 of the counter

affidavit filed on 25.02.2023 by Ms. Deepti Swarrop,

Regional Director, NRC, NCTE, the NCTE has clarified that

the qualification for Arts teachers has not been prescribed

by the NCTE, therefore, the qualification prescribed by the

State shall be applicable in the instant matter. It is also

submitted that the petitioner had joined the entire

recruitment process. After the release of the answer keys,

they apprehended that, they may not be successful,

therefore, the claims were made. Mr. Abhijay Negi, would

submit that there are other communications of the NCTE

prescribing minimum educational qualification. In case,

State proposes to conduct the examination in consonance

with NCTE notifications, it should also take into

consideration such directions and notifications of the NCTE.

He would also submit that the State Government should be

directed to expedite the process of recruitment, which is

pending for a long now.

20. Learned counsel appearing for the Commission

would submit that the dispute is with regard to the

recruitment to the post of Assistant Teacher, LT (Arts).

Therefore, recruitment process for the post of Assistant

Teacher, LT Grade other than Arts may be allowed to

continue.

21. Mr. Rajesh Joshi, learned counsel appearing for

the intervener, would submit that a candidate, who

possessed educational qualification for appointment as a

teacher in LT Grade as per the State Service Rules, 2014

should also be allowed to participate in the selection

process.

DISCUSSION & CONCLUSION

22. Factual narration in a chronology may help to

better appreciate the controversy. It is as follows:-

(i) On 19.02.2014, the State Service Rules,

2014, were promulgated by the State of

Uttarakhand prescribing minimum eligibility

criteria for recruitment of teachers.

(ii) On 12.11.2014, the 2014 Regulations were

notified by the NCTE prescribing minimum

qualification, for recruitment of teachers in

schools. For appointment of teachers in

Secondary/High School (for Classes IX and

X) educational qualification is as follows:-


         4. Secondary/High School (a)     Graduate/Post
         (For classes IX-X)       Graduate          from
                                  recognized university
                                  with at least 50%
                                  marks      in    either
                                  graduation or post
                                  graduation    (or    its
                                  equivalent)        and
                                  bachelor of Education
                                  (B.Ed.) from National
                                  Council for Teacher
                                  Education recognized
                                  institution)

(iii) On 23.12.2019, the State of Uttarakhand

made amendment in the State Service Rules,

2014 in consonance with 2014 Regulations.

The minimum educational qualification for

the teacher LT Grade has been changed as

follows:-

            1) Graduate      degree      in    Drawing       and
               Painting/Fine    Art     (painting)/Visual    Art

(painting) from any University established by the law in India.

2) Degree of B.Ed. from any Government or Government recognized training institution/college.

Degree of BA.Ed of minimum four years in the subject of Arts from any institution recognized from National Council for Teachers Education.

(iv) On 13.10.2020, the Commission issued an

advertisement inviting applications for

appointment of Assistant Teacher, LT Grade

including Assistant Teacher, LT (Arts). The

last date for submission of the application

was 04.12.2022.

(v) On 25.02.2021, by the 2021 Amendment,

the State of Uttarakhand further amended

the State Service Rules, 2014, thereby

omitting the requirement of B.Ed. for the

posts. The eligibility was changed as follows:

            (1) Graduate     degree      in    Drawing       and
               Painting/Drawing               design/Technical

Art/Paining (Fine Art)/Painting (Visual Art) from any University established by the law in India.

Note:- The above subject is compulsory in all years/semester of graduation.

Degree of BA.Ed. of minimum four years in the subject of Arts from any institution recognized from National Teachers Education Council.

(vi) On 15.03.2021, in the Writ Petition (PIL) no.

33 of 2021, the Division Bench of this Court

had extended the time for submitting the

application form till 25.03.2021.

(vii) On 12.03.2021, the Commission issued a

press release extending the time for

submitting application form, as also inviting

applications for appointment to the post of

Assistant Teacher, LT Grade (Arts) from

such candidates, who are non-B.Ed.

(viii) Writ Petitions were filed, in which on

31.03.2022, the impugned judgment was

passed which is impugned in the special

appeals.

(ix) Separate Writ Petitions (S/S) No. 213 of

2022 and 631 of 2022 have been preferred

for quashing the 2021 Amendments and

related reliefs.

23. Minimum qualifications of teachers at different

levels of schools were laid down by the NCTE under the

1993 Act. In exercise of power conferred under Clause (dd)

of sub Section (2) of Section 32 read with Section 12 A of the

1993 Act, the NCTE had framed the 2014 Regulations. The

first schedule of 2014 Regulations provides for minimum

educational qualifications for persons eligible for

appointment as a Teacher in Pre-school/Nursery Primary

and Upper Primary (from Classes I to VII) and

Secondary/High School ( IX and X).

24. In order to provide free and compulsory education

to all children of the age from 6 to 14 years, the Right of

Children to Free and Compulsory Education Act, 2009 ("the

2009 Act") was enacted. Section 23 of the 2009 Act,

provides that the minimum qualifications for appointment of

Teachers shall be laid down by an Academic Authority,

authorized by the Central Government by a notification. In

furtherance of the provisions of the 2009 Act, the NCTE

issued notification dated 23.08.2010 prescribing minimum

educational qualifications for a person to be eligible for

appointment as a Teacher from Class I to VIII.

Subsequently, this notification dated 23.08.2010 was

further amended in the year 2011 by a notification dated

29.07.2011.

25. The area which is governed by the 2009 Act, is

quite distinct than the area which is governed by the 1993

Act. It is under those circumstances, that the Court on

22.03.2023 required the NCTE to file an affidavit on the

pointed query. In para 5 of its affidavit, dated 27.04.2023

again, on behalf of the NCTE, it is reiterated that the NCTE

Notification dated 23.08.2010 is also an integral part of the

Notification dated 12.11.2014.

26. During the course of argument, learned counsel

for the NCTE would give a statement that, for appointment

of the Teachers in Secondary/High School (Classes IX and

X), the 2014 Regulations, as framed under the 1993 Act, are

applicable. He would submit that the notification issued

under the 2009 Act, will not govern the field.

27. Learned State counsel would submit that in the

State of Uttarakhand, Class VI to Class X is one cadre, that

is LT cadre. He would submit that for appointment of

Teachers in Classes VI to VIII, B. Ed. is not a necessary

qualification. By this analogy, the minimum qualification

which is prescribed by 2014 Regulations, does not become

redundant.

28. If the NCTE, under statutory command prescribes

a minimum qualification for teachers to be appointed in

Classes IX and X, such a qualification would still continue.

Those teachers may also be eligible to teach in Classes VI to

VIII. They may not be said to be ineligible for appointment

as a teacher for Classes VI to VIII. But if B.Ed. is not a

qualification for appointment of teachers for Classes VI to

VIII, such Teachers, who are non B.Ed. cannot be appointed

as teachers for Classes IX and X and as such, they cannot

teach in Classes IX and X.

29. The core question which falls for consideration in

the instant matter has already been answered by the

Hon'ble Supreme Court in the case of State of Uttar

Pradesh and others Vs. Shiv Kumar Pathak and others,

(2018) 12 SCC 595, wherein the Hon'ble Supreme Court

held that the qualifications prescribed by the NCTE are

binding. In para 17 of the judgment, the Hon'ble Supreme

Court observed as hereunder:-

"17. There is no manner of doubt that NCTE, acting, as an "academic authority" under Section 23 of the RTE Act, under the Notification dated 31-3-2010 issued by the Central Government as well as under Sections 12 and 12-A of the NCTE Act, was competent to issue Notifications dated 23-8-2010 and 11-2-2011. The State Government was under obligation to act as per the said notifications and not to give effect to any contrary

rule................................................................................... ........................................................................................"

30. In the instant case, after promulgation of 2014

Regulations, the State of Uttarakhand had amended the

State Service Rules, 2014 on 23.12.2019. Uptil that stage,

the State had acted as per statutory mandate. The

minimum qualifications for a Teacher were prescribed as

per the NCTE notifications. But thereafter, the amendments

which were made on 25.02.2021 are in contravention to the

minimum educational qualifications prescribed by the NCTE

Regulations, 2014. Therefore, this amendment is illegal and

it deserves to be struck down.

31. In the impugned order dated 31.03.2022, the

aspect of prejudice and rights of the candidates have also