Neha vs State Of Uttarakhand And Others
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Uttarakhand High Court

Neha vs State Of Uttarakhand And Others on 6 March, 2024

Author: Pankaj Purohit

Bench: Pankaj Purohit

HIGH COURT OF UTTARAKHAND AT NAINITAL
           Writ Petition (S/S) No.877 of 2022
Neha                                          ........Petitioner
                            Versus

State of Uttarakhand and Others           ........Respondents

                             With

           Writ Petition (S/S) No.878 of 2022
Devendra                                      ........Petitioner

                            Versus

State of Uttarakhand and Others           ........Respondents

Presence:-
       Mr. Vinod Tiwari, learned counsel for the petitioners.
       Mr. Narayan Dutt, learned Standing Counsel for the
       State of Uttarakhand.

Hon'ble Pankaj Purohit, J. (Oral)

Since common question of law is involved in both the writ petitions, hence, the same are taken up and decided by this common judgment. For the sake of relevance, the facts of WPSS No.877 of 2022 are taken into consideration.

2. In both the writ petitions, petitioners have prayed for issuance of writ order in the nature of mandamus directing the respondents to consider the appointment of the petitioners according to the counseling dated 11.04.2022 of the selected candidates enlisted in the third waiting list, in which the control numbers of the petitioners were 022247 and 026792 respectively, for the post of Assistant Teacher (Primary School).

3. The facts in the nutshell are that the petitioner had passed her Secondary School Examination and Senior Secondary School Examination from National Institute of Open Schooling and thereafter, she pursued B.A. (Bachelor of Arts) from Bharati Vidyapeeth Deemed University, Pune. The petitioner appeared and qualified the course of Diploma in Education (Two years Course) from Board of Secondary Education, Madhya Pradesh, Bhopal and subsequently, she qualified Uttarakhand Teachers Eligibility Test (UTET) in 2018 from Board of School Education, Uttarakhand, Ramnagar.

4. According to the petitioner, in the year 2020, the posts of Assistant Teacher in Government Primary Schools of Uttarakhand were advertised for 10 districts in the State of Uttarakhand, pursuant to which, the petitioner applied.

5. In pursuance of the aforesaid advertisement, to fill up the post of Assistant Teacher through direct recruitment, a third waiting list for counseling of selected candidates was issued, in which the petitioner participated on 11.04.2022. After counseling, 13 candidates were issued the appointment letters, but, the petitioner was denied for the same.

6. On enquiry, it came to the notice of the petitioner that her candidature has been rejected on the ground that she possessed two years' Diploma in Education (D.Ed.), however, the said qualification possessed by the petitioner, is not mentioned to be the minimum qualification for appointment in the Uttarakhand Government Elementary Education (Teacher) Service Rules, 2012. The notification issued by the National Council for Teacher Education (N.C.T.E.) dated 23.08.2010 prescribing minimum qualification for Elementary Teachers for Class I to V is quoted herein below:

"(a) Senior Secondary (or equivalent) with atleast 50% marks and two years Diploma in Elementary Education (by whatever name known).

OR Senior Secondary (or its equivalent) with atleast 45% marks and two years Diploma in Elementary Education (by whatever name known) in accordance with the NCTE (recognition norms and procedure) Regulation, 2002.

OR Senior Secondary (or its equivalent) with atleast 50% marks and four years Bachelor of Elementary Education (B.Ed.).

OR Senior Secondary (or its equivalent) with atleast 50% marks and two years Diploma in Elementary Education (Special Education).

AND Pass in the Teachers Eligibility Test (TET) to be conducted by appropriate Government in accordance with the guidelines framed by NCTE for the purpose."

7. It is not in dispute that the institute from where the present petitioners have pursued their 2- years Diploma Course in Education is recognized by the N.C.T.E. or not.

8. Section 23(1) of the Right of Children to Free and Compulsory Education Act, 2009 lays down the manner and qualification for appointment and terms and conditions of service of the teachers. The said Section 23 (1) of the Act 2009 prescribes 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. It is worth to mention at this stage that National Council for Teacher Education (N.C.T.E.) has released a Regulation by superseding the N.C.T.E. Regulation, 2009 published on 28.11.2014 with a Regulation by appendix-1. As per the above Regulation dated 28.11.2014, the Diploma in Elementary Teachers Education Programme, which carries different nomenclatures such as B.T.C., J.B.T., D.Ed. and (Diploma in Education), has been reclassified and recognized with nomenclature D.El.Ed. from 28.11.2014 onwards. In the above background, as per the advertisement, petitioners are eligible for appointment to above said posts, and, therefore, they were placed in the merit list of counseling. However, subsequently, the respondent authorities removed the names of the petitioners from the merit list meant for counseling/ appointment.

9. A counter affidavit is filed on behalf of respondent Nos.2 & 3, wherein, it is stated that the petitioners do not possess the minimum qualification meant for the post of Assistant Teacher (Primary School). As per the Uttarakhand Government Elementary Education (Teacher) Service Rules, 2012, the Diploma in Education (D.Ed.) qualification is not mentioned, and, in this backdrop, petitioners are not eligible. The petitioners are having two years Diploma in Education (D.Ed.), but not in Special Education, therefore, their candidature was not considered by the Department. It is further stated that the similarly situated D.Ed. trained persons filed Writ Petition (S/S) No.1739 of 2021, which was disposed of vide order dated 04.01.2022 by observing that after participating in the selection process, after conclusion of the counseling which was held thereafter, the petitioners cannot challenge the conditions of the advertisement, and, in this backdrop, the said petition was dismissed.

10. The attention of the Court was drawn by the learned counsel for the petitioners towards the notification dated 28.11.2014, which is read as under:

"1.2. The elementary teacher education programme carries different nomenclatures such as BTC, J.B.T., D.Ed. and (Diploma in Education). Henceforth, the nomenclature of the programme shall be the same across all states and it shall be referred to as the 'Diploma in Elementary Education' (D.El.Ed)".

11. Petitioners have placed on record their certificates, which are annexed as Annexure No.1 to the writ petition collectively, which have been issued by the National Council for Teacher Education (N.C.T.E.). These certificates are in tone with the Notification dated 28.11.2014 and the petitioners are eligible to participate in the selection process initiated by the respondents vide the said advertisement.

12. The same controversy arose recently before a Division Bench of this Court in Writ Petition (S/B) No.188 of 2022, which was decided on 13.02.2024, wherein, the Division Bench held that as per 2014 notification issued by the N.C.T.E., the stand of the State that the petitioners should have a Diploma in Elementary Education for Special Children was held to be of no relevance, as advertisement was issued for recruitment of 2724 Teachers by several advertisements and it was never specified that it was for Special Children; and, accordingly, the writ petition was allowed.

13. Since, the subject matter of the present writ petition is also one of the same and the petitioners in view of the facts narrated hereinabove also fall within the category of consideration for the post in-question.

14. In view of what has been stated hereinabove, both the writ petitions are allowed. The respondent-State is directed to hold the petitioners eligible to participate in the selection process for the post in-question and appoint them if they fall in the merit immediately within four weeks. No order as to costs.

15. Pending application(s), if any, stands disposed of accordingly.

(Pankaj Purohit, J.) 06.03.2024 PN