State Of Uttarakhand And Others. ... vs Manoj Kumar And Others
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Uttarakhand High Court

State Of Uttarakhand And Others. ... vs Manoj Kumar And Others on 4 September, 2024

                                                   2024:UHC:6380-DB
     HIGH COURT OF UTTARAKHAND AT NAINITAL
     HON'BLE THE CHIEF JUSTICE MS. RITU BAHRI
                        AND
      HON'BLE SRI JUSTICE RAKESH THAPLIYAL
                4th September, 2024
             SPECIAL APPEAL NO. 380 OF 2022


State of Uttarakhand and others.                     ...Appellants.
                       Versus

Manoj Kumar and others.                         .......Respondents

Counsel for the appellants     :   Mr. C.S. Rawat, learned Chief
                                   Standing Counsel for the State of
                                   Uttarakhand / appellants.
Counsel for the respondents    :   Mr. Arvind Vashisth, learned Senior
                                   Counsel assisted by Mr. Sandeep
                                   Tiwari, learned counsel for the
                                   respondents.


JUDGMENT :

(per Ms. Ritu Bahri, C.J.)

Counsel for the State has referred to the judgment

of the Supreme Court dated 11th August, 2023 passed

in Civil Appeal No. 5068 of 2023 titled as 'Devesh

Sharma vs. Union of India and others' and other

connected Civil Appeals, where the Supreme Court has

held that for the post of Assistant Teacher, Primary

Schools, the qualification of B.Ed. should not be made a

ground for eligibility for appointment.

2. The above judgment has come in the year 2023

and in the present case, the advertisement for

appointment to the post of Assistant Teacher, Primary

Schools, in District Haridwar is of 9th July, 2006 and the

respondent-writ petitioners in this case were only

seeking a direction to the respondents (appellants 2024:UHC:6380-DB herein) that they should be appointed as they have

already undergone training after selection and this

judgment was passed on 28th April, 2022.

3. The only prayer made by the respondent-writ

petitioners was that after being selected and after

undergoing training, they should be given appointment.

The advertisement in the present case is of 9th July,

2006, hence, the aforesaid judgment of the Supreme

Court, which was passed in the year 2023, cannot be

made applicable to deny them the benefit of

appointment. Also no challenge was made by any

candidate with respect to the eligibility criteria of B.Ed.

qualification.

4. The Special Appeal is, accordingly, dismissed.

5. Pending application, if any, also stands dismissed.

______________

RITU BAHRI, C.J.

JUDGMENT: (Per Hon'ble Mr. Justice Rakesh Thapliyal)

1. I have gone through with the draft judgment authored by Hon'ble Chief Justice Ms. Ritu Bahri but with great regard to Her Ladyship, I am not in agreement with the judgment rendered by Her Lordship, accordingly, I am rendering the following judgment:

2024:UHC:6380-DB

2. Brief facts of the case are that the writ petition was filed by the petitioners - respondents, herein, who were having B. Ed. Degree from correspondence mode and the writ petition was allowed by the learned Single Judge and the respondents State - appellants, herein, were directed to offer appointment to the petitioners on the post of Assistant Teacher in Primary School in District Haridwar within a period of three months. Being aggrieved with the judgment passed by the learned Single Judge present Special Appeal has been preferred by the State.

3. The main ground for challenging the judgment passed by the learned Single Judge is that the selection is pertaining to the post of Assistant Teacher in Primary School, for which advertisement dated 09.07.2006 was issued, however, in the year 2009, a Notification was issued on 27.08.2009 under the Right of Children to Free and Compulsory Education Act 2009, by which minimum qualification for the post, in question, was changed due to which, petitioners - respondents, herein, could not be appointed. Subsequently, candidates, who were having B.Ed. Degree, were considered for taking admission in Special BTC Training course making them to be eligible for appointment against the post of Assistant Teacher, Primary Schools.

4. By virtue of Notification issued under Section 23 (1) of the Right to Education Act, 2009 by which the minimum qualification was laid down and in furtherance of the same, Government by Notification dated 28.08.2012 promulgated the Uttarakhand State Elementary Education (Teachers) Service Rules, 2012 and Rule 9(A) of the aforesaid Rules, prescribes the 2024:UHC:6380-DB minimum qualification for the post of Assistant Teacher, which is being extracted hereinbelow:

"i. Graduation Degree, from any University of India, established by law.

ii. Two years diploma in Elementary Education (D.El. Ed.) from the District Institute for Education and Training (DIET) (earlier known as BTC).

iii. TET (Teachers Eligibility Test)"

5. Mr. C.S. Rawat, learned Chief Standing Counsel for the State has placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Devesh Sharma Vs. Union of India and others 2023 SCCOnline SC 985 decided on 11.08.2023 wherein it has been held that for the post of Assistant Teacher in Primary School, the qualification of B.Ed. should not be made as qualification.

6. Thereafter, Hon'ble Supreme Court further clarified the judgment dated 11.08.2023 passed in Devesh Sharma Vs. Union of India and others 2023 SCCOnline SC 985 in Misc. Application (Diary) No. 4303 of 2024 on 08.04.2024. As it appears from the judgment passed by the Hon'ble Supreme Court, the issue involved before the Hon'ble Supreme Court pertains to the eligibility of B.Ed. Candidates to be appointed as teaching staff in cases where they did not have D.El.Ed, which is a diploma course. This case was arising out of the judgment rendered by the Rajasthan High Court wherein it was held that at the primary level, the eligibility criteria would be D.El.Ed., qualification which is a diploma course and not B.Ed. The High Court had quashed the Notification of the Central Government dated 28.06.2018 by which B.Ed. was included as a qualification for teachers at primary level i.e. for class I to class V and in the judgment 2024:UHC:6380-DB delivered by the Hon'ble Supreme Court on 11.08.2023, appeals filed against the said judgment were dismissed. Thereafter, application was filed by the Madhya Pradesh High Court whereby certain clarifications were sought and the Hon'ble Supreme Court clarified that the judgment passed by the Hon'ble Supreme Court on 11.08.2023 ought to have prospective application. While taking into consideration the application, the Hon'ble Supreme Court also took notes of the fact that the present dispute is the subject-matter of a large number of litigations in various states. Two sets of parties are there before the Hon'ble Supreme Court seeking clarification of the judgment. One set wanted retention of the said judgment in its present form and the other parties alleged that it would result in loss of employment to those who were already appointed as teachers in different States on the strength of their B.Ed degree. The main bone of contention was that they had entered into their employment following a legitimate course as per the Notification issued by the respective appointing authorities which did not stipulate D.El.Ed. to be the only requisite qualification.

7. Ultimately the Hon'ble Supreme Court observed in its order dated 08.04.2024 that the judgment delivered by this Bench on 11th August, 2023 shall have prospective operation. But prospective operation of this judgment shall only be for those candidates who were appointed without any qualification or conditions imposed by any court of law to the effect that their appointment would be subject to final outcome of the case which might have been instituted by them and 2024:UHC:6380-DB such candidates were in regular employment without any disqualification and were appointed in pursuance of a notice of advertisement where B.Ed. was stipulated to be valid qualification. Services of only such candidates shall not be disturbed because of this judgment.

8. The Hon'ble Supreme Court makes it clear that this benefit is only for the candidates who were appointed prior to the date our judgment delivered, on 11th August, 2023. Mere selection of such candidates or their participation in the process will not entitle them for a benefit under our present order. The Hon'ble Supreme Court further observed that the candidates having B.Ed. qualification whose appointments we are protecting in this judgment, will have to undergo a bridge course and for that purposes, the Hon'ble Supreme Court further direct that the educational authorities shall device such course, which would be applicable for each state and union territory, within a period of one year. Simultaneously, the National Council for Teacher Education was also directed to design such course under overall supervision of the Ministry of Education, Union of India. Upon formulation of such course, the same shall be publicly notified and a timeframe shall also be given within which the respective candidates shall participate therein. A further condition was also stipulated there that failure of any candidate to participate and complete the course within the timeframe to be given by the concerned educational authorities will invalidate the appointment of such candidate. While concluding the said judgment the Hon'ble Supreme Court directed that this order shall not be confined to the particular State only and shall cover all cases which may be pending in different 2024:UHC:6380-DB judicial fora in any State or Union territory on the same point of law.

9. As it appears from the said judgment, it is clear that it is not only confined to that particular State but it is applicable to all the States and Union Territories, therefore, directions issued by the Hon'ble Supreme Court in its judgment dated 11.08.2023, which was clarified by judgment dated 08.04.2024 are binding and cannot be ignored.

10. At this juncture, it is pertinent to mention that there is another the judgment rendered by another Division Bench of this Court on 06.12.2023 passed in Writ Petition No. 574 of 2019 and while dismissing the bunch of writ petitions, the Division Bench also took note of the judgment rendered by the Hon'ble Supreme Court dated 11.08.2023 in Devesh Sharma Vs. Union of India and others 2023 SCCOnline SC 985, wherein it has been held that B.Ed. qualification holders are not eligible for appointment as Assistant Teacher in Elementary/Primary Schools. The Division Bench of this Court also extracted paragraph 79 to 82 of the judgment rendered by Hon'ble Supreme Court in the case of Devesh Sharma (supra), which are also being also extracted below:-

"79. In the present case and in the larger context of the matter, we cannot even see this as a policy decision. But without getting into this argument, even presuming for the sake of argument that the decision taken at the Government level to include B.Ed. as a qualification for teachers at primary level is a policy decision, we must say that this decision is not correct as it is contrary to the 2024:UHC:6380-DB purpose of the Act. In fact, it goes against the letter and spirit of the Fundamental Right enshrined in the Constitution under Article 21A. It is against the specific mandate of the Act, which calls for a free, compulsory and meaningful primary education to 10 children. By including B.Ed. as a qualification for teachers for primary school, the Central Government has acted against the provisions of the Constitution and the laws. The only logic given by the Central Government to include B.Ed. as a qualification is that it is a 'higher qualification'. This we have already seen is not correct. Under these circumstances, we have no hesitation to say that the notification has rightly been quashed and the decision of the Division Bench of the Rajasthan High Court has to be upheld.

80. In our considered opinion therefore the direction of the Central Government dated 30.05.2018 culminating in the notification dated 28.06.2018 of NCTE are violative of the principles as laid down in RTE Act. Not only this, the notification goes against the purpose and the mandate of law, which is to provide a meaningful and 'quality' primary education to children.

81. The entire exercise is also procedurally flawed. The notification dated 28.06.2018 is not an independent decision of NCTE taken after due deliberation, but it simply follows the direction of the Central Government, a direction which fails to take into 2024:UHC:6380-DB consideration the objective realities of the day.

82. Having made the above determination we, all the same, are also of the considered opinion that the State of Rajasthan was clearly in error in not calling for applications from B.Ed. qualified candidates, for the reasons that till that time when such an advertisement was issued by the Rajasthan Government, B.Ed. candidates were included as eligible candidates as per the statutory notification of NCTE, which was binding on the Rajasthan Government, till it was declared illegal or unconstitutional by the Court. The Rajasthan High Court had rightly observed as under:

"..we are of the opinion that the State Government could not have ignored the notification 11 while inviting applications for REET. Even if the State Government was of the opinion that such notification was unconstitutional or for any reason illegal, the same had to be stayed or set aside by a competent court before it could be ignored."

11. The aforesaid judgment of the Division Bench of this Court clearly observed that B.Ed. alone is not sufficient for appointment as Assistant Teacher in Primary Schools, in view of law laid down by the Hon'ble Supreme Court. Therefore, petitioners are not eligible for appointment in Primary / Basic / Elementary Schools.

2024:UHC:6380-DB

12. The Hon'ble Supreme Court further in Special Leave Petition arising out of Diary No. 17948 of 2024 (Navin Kumar and others Vs. Union of India and others) 2024 INSC 656 decided on 28.08.2024 has reiterated its view rendered in the case of Devesh Sharma (supra) and has held that such B.Ed. qualified candidates who were selected and appointed prior to our decision in Devesh Sharma (supra) i.e. prior to 11.08.2023, shall not be disturbed as there was a special equity in their favour. Therefore, our judgement would be prospective in nature, and will not disturb the appointments of such candidates who had already been appointed prior to the judgment in Devesh Sharma (supra) i.e. prior to 11.08.2023. This is what was clarified in our order dated 08.04.2024. The Hon'ble Supreme Court further observed that when recruitment to the post of teachers was being made in Rajasthan, B.Ed. was a qualification for teachers as per the NCTE notification. The above observation made by us was only to affirm the findings of the Rajasthan High Court which had although held that B.Ed. was not a valid "qualification" for primary teachers, yet cautioned that the Government could not have ignored the notification of the NCTE till it was declared illegal by a Competent Court. That was all. In Chhattisgarh, this was not the case. B.Ed. qualified candidates were called by the State in the selection process, yet as they were held to be non-qualified by a judgment of this Court, which is the law now and by logic has to be implemented, they were rightly held to be disqualified. How does our observations in Devesh Sharma (supra) help the petitioners, we simply fail to understand. This argument is totally misconceived. B.Ed. is not a qualification for a teacher in a Primary 2024:UHC:6380-DB School. Moreover, this aspect has already been clarified in the order dated 08.04.2024, where only such candidates have been saved who were selected and appointed prior to our order dated 11.08.2023 in Devesh Sharma (supra). Since the petitioners in the present case were appointed post 11.08.2023 and their appointments were also subjected to the final outcome of the pending writ petition before High Court, they cannot get any benefit. The completion of the selection process prior to 11.08.2023 is not material. What is important is the date of appointment which is certainly after the cut-off date. They will stand disqualified, as they do not have the essential qualification for appointment as primary school teachers.

13. Now, in the present case, learned counsel for the respondents submits that all these respondents, herein, participated in the selection process pursuant to advertisement dated 09.07.2006, therefore, judgment rendered by the Hon'ble Supreme Court will not come into their way and respondents are entitled to get such benefit and as such, they should be given appointment.

14. I am not convinced with the argument as advanced by the learned counsel for the respondents, in view of clarification as given by the Hon'ble Supreme Court in the judgment and order dated 08.04.2024, which is in fact clarification of the judgment dated 11.08.2023 and subsequent judgment dated 28.08.2024 in the case of Naveen Kumar (supra) and perusal of the said clearly reveals that protection was given to only those who were already appointed subject to this condition that they will qualify the bridge course, which shall be designed by the NCTE. The Hon'ble 2024:UHC:6380-DB Supreme Court has clearly observed in this order that mere selection or participation in the process will not entitle the candidates for benefit as given to those, who were already appointed. Further not only this, even the Hon'ble Supreme Court further clarified that the direction as issued are not confined to the particular State but shall cover all the cases which are pending in different States or Union Territories.

15. After taking into consideration the judgment rendered by the Hon'ble Supreme Court in the case of Devesh Sharma Vs. Union of India and others 2023 SCCOnline SC 985 dated 11.08.2023, order dated 08.04.2024 and subsequent order dated 28.08.2024, I am of the view that present appeal deserves to be allowed. Accordingly, the same is allowed. The judgment and order dated 28.04.2022 passed by the learned Single Judge in WPSS No. 2868 of 2019 (Manoj Kumar and others Vs. State of Uttarakhand and others) is also set aside.

__________________ Rakesh Thapliyal, J.

Since there is difference of opinion, let the matter be placed before the large Bench.

_____________ Ritu Bahri, CJ.

__________________ Rakesh Thapliyal, J.

Dt: 4th September, 2024 Rathour

PRAVINDR

AS 2.5.4.20=23699ccc2fd40ad81b6fd13323779d 9e3aeb1097d17dbb53d481cabd25946eed, postalCode=263001, st=UTTARAKHAND, serialNumber=1F65499E931DF71CDAF92A4

RATHOUR 0CC6179B8E010331BA695239171F906FD5C 45C4E8, cn=PRAVINDRA S RATHOUR Date: 2024.09.23 13:34:29 +05'30'