In the Hon’ble High Court of Judicature at Allahabad, Lucknow Bench, Lucknow

Writ petition No- 2530 of 2014 (PIL-Civil)

Dr Nutan Thakur Petitioner

Versus

State of UP and others Respondents

Index

S No	Description of documents relied upon		Page No
		From	To
1.	List of Dates and Events (separate)	Separate
2.	Memo of Writ Petition
3.	Annexure No 1 A copy of the first page of the UP-TET test for 2013 language teacher
4.	Annexure No 2 A copy of the answer sheet for English language teacher for UP-TET test for 2014
5.	Photo Identity of the petitioner
6.	Affidavit

Place- Lucknow                                                    (Dr Nutan Thakur)
Dated-   25/03/2014                                         Petitioner in Person
                                                                                    # 94155-34525

In the Hon’ble High Court of Judicature at Allahabad, Lucknow Bench, Lucknow

Writ petition No- 2530 of 2014 (PIL-Civil)

Dr Nutan Thakur Petitioner

Versus

State of UP and others Respondents

LIST OF DATES AND EVENTS

S No Date Event

1. 2009 Right to Free and Compulsory Education
for Children Act passed

2. 23/08/2010 Minimum qualifications for teachers fixed
by the NCTE

3. 11/02/2011 NCTE issued Guidelines for conducting
Teacher Eligibility Test (TET)

Elementary education has extremely important role in society. Article 45 of the Indian Constitution and Article 21-A regarding “Right to education” brings out the importance given to elementary education. The Right to Free and Compulsory Education for Children Act, 2009 (RTE Act, for short) further proves the importance of elementary education. The Central Government and the State of U.P. have already framed Rules to enforce the RTE Act. Section 23 of the RTE Act prescribes qualifications for appointment and terms and conditions of service of teachers saying that 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. Section 8 enjoins the appropriate government with a duty to provide quality education and ensure good quality elementary education conforming to the standards and norms specified in the schedule. Section 8(g) of the Act reads as under-“ensure good quality elementary education conforming to the standards and norms specified in the Schedule.” The National Council for Teacher Education (NCTE, for short) is the academic authority for laying down minimum qualifications for teachers. Through Notification dated 23/08/2010 by NCTE the minimum qualifications were fixed by the NCTE. NCTE had vide Notification dated 23/08/ 2010 and 29/07/2011 laid down the minimum qualifications for a person to be eligible for appointment as a teacher in classes I to VIII. It had been provided that one of the essential qualifications for a person to be eligible for appointment as a teacher in any of the schools referred to in clause (n) of section 2 of the RTE Act is that he/she should pass the Teacher Eligibility Test (TET) which will be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE. NCTE through Notification dated 11/02/2011 issued Guidelines for conducting Teacher Eligibility Test (TET). Para 7 of these Guidelines provide the Structure and Content for both primary and upper primary teachers. Many issues related with TET were discussed and decided by a three-member bench of this Hon’ble Court at the Allahabad bench in Shiv Kumar Sharma Vs. State of U.P. & others (Civil Misc. Writ Petition No. 12908 of 2013) and others which ordered that the teacher eligibility test is an essential qualification that has to be possessed by every candidate who seeks appointment as a teacher of elementary education in Classes 1 to 5. The above mandatory provisions are being violated in Uttar Pradesh for language teachers, as explained in details in the Writ Petition. It has a larger public interest involved in it as it is related with quality of elementary education.

Hence this Writ Petition.

In the Hon’ble High Court of Judicature at Allahabad, Lucknow Bench, Lucknow

Writ petition No- 2530 of 2014 (PIL-Civil)

Nutan Thakur w/o Sri Amitabh Thakur, r/o 5/426, Viram Khand, Gomti Nagar, Lucknow ------- Petitioner

Versus

1. State of Uttar Pradesh through Principal Secretary, Basic Education Department, Government of UP, Lucknow

2. Uttar Pradesh Basic Shiksha Parishad through Director, Basic Education, Lucknow

3. Uttar Pradesh State Council for of Education, Research and Training (SCERT), through its Director, Nishat Ganj, Lucknow

4. National Council for Teacher Education through its Chairman, Hans Bhawan, Wing II, 1, Bahadur Shah Zafar Marg, New Delhi

5. Pariksha Niyamak Pradhikari, Uttar Pradesh c/o Director, Uttar Pradesh Basic Shiksha Parishad, Lucknow ------- Respondents

Writ Petition under Article 226 of the Constitution of India

To,

The Hon’ble Chief Justice and His other Hon’ble companion Judges of the aforesaid Court:

The humble petition of the above named petitioner most respectfully begs to submit as under:

1. That by means of this Public Interest Litigation (PIL, for short) under Article 226 of the constitution of India, the petitioner is invoking the extra ordinary jurisdiction of this Hon’ble court to kindly issue an appropriate writ directing the concerned respondents to immediately quash all the examinations being presently in process for Uttar Pradesh Teacher’s Eligibility Test (UP-TET, for short) for the year 2014 being conducted in flagrant and direct violation of the mandatory requirements prescribed by the National Council for Teacher Education (NCTE, for short) and to accordingly direct the concerned respondents to conduct these UP-TET tests for 2014 and subsequent years only as per the mandatory requirements prescribed by NCTE. The petitioner also prays before this Hon’ble Court to kindly issue an appropriate writ directing the concerned respondents to immediately quash all the previous examinations already conducted for Uttar Pradesh Teacher’s Eligibility Test (UP-TET, for short) for the year 2013 and to accordingly direct the concerned respondents to conduct UP-TET tests for 2013 again as per the mandatory requirements of NCTE. The petitioner accordingly prays before this Hon’ble Court to kindly issue an appropriate writ to the concerned respondents to end/terminate the process of appointment of primary and upper primary teachers for language teachers currently being undertaken through the UP-TET examination 2013 conducted against the mandatory requirements prescribed by NCTE. The petitioner also prays before this Hon’ble Court to kindly direct the concerned respondents to quash all the appointments previously done for language teachers for Primary and upper primary schools, done through UP-TET examination conducted in flagrant violation of mandatory provisions directed by NCTE.

The Petitioner declares that she has not filed any other writ petition before this High Court either at Allahabad or at Lucknow. The Petitioner also declares that she has not received any notice of Caveat from any person including the respondents by post or otherwise. She also declare that to the best of her knowledge and search, there is no pronouncement as regards the above issues being presented through this Writ Petition either by the Hon’ble Supreme Court or this Hon’ble Court, though many other Writ Petitions as regards UP-TET have been filed and some of them including Shiv Kumar Sharma Vs. State of U.P. & others (Civil Misc. Writ Petition No. 12908 of 2013) in the Allahabad bench of this Hon’ble Court decided by this Hon’ble Court and the Hon’ble Supreme Court, but to the best of the petitioner’s knowledge the issue raised by her in this PIL is completely different from these Writ Petitions and is related with a matter of larger public interest completely untouched in these numerous Writ Petitions, where among other things, she shall also be using the order of this Hon’ble Court in Shiv Kumar Sharma (supra) to substantiate her arguments.

2. That this is a Public Interest Litigation (PIL) being filed for betterment of elementary education through induction of better variety teachers, as per the prescribed and mandated norms and to end the present situation in UP where these mandatory norms are being violated for the so-called language teachers.

3. That this being a PIL, in pursuance of Rule 1, subrule (3A) of Chapter XXII of the Allahabad High Court Rules 1952 the petitioner finds it relevant to present some facts regarding her own credibility. The Petitioner is a citizen of India and is well-known and nationally recognized social activist who is positively contributing to the society in all possible ways. She does not have anything against her of such nature which legally or otherwise bars her from filing this PIL. The matter being presented here is primarily related to betterment of elementary education through induction of better variety teachers, as per the prescribed and mandated norms and to end the present situation in UP where these mandatory norms are being violated for the so-called language teachers.

In pursuance of the above Rule, the petitioner states on oath that the public cause she is seeking to espouse through this Writ Petition is as regards betterment of elementary education through induction of better variety teachers, as per the prescribed and mandated norms and to end the present situation in UP where these mandatory norms are being violated for the so-called language teachers. The petitioner again puts it on oath that she is not filing this PIL for any ulterior motive save the stated one nor has she received a single penny through any backdoor activity while filing this PIL. She states on oath that she has no personal or private interest in the matter and she is not an applicant for the TET examinations nor is she a candidate for primary or upper-primary teacher. As far as she knows there is no authoritative pronouncement by the Hon’ble Supreme Court or this Hon’ble High Court on the specific questions raised here. She puts it on oath that the result of the Litigation will not lead to any undue gain to her or anyone associated with her or any undue loss to any person, body of persons or to the State but would result in better protection of women of the State of UP at their workplace as has been the intent of the Act.

4. That coming to the matter of the PIL, Article 45 of the Indian Constitution says—“The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years” while Article 21-A says-“Right to education.-- The State shall 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."

5. That this Constitutional change heralded the framing of the Right to Free and Compulsory Education for Children Act, 2009 (RTE Act, for short). The Central Government has framed Right to Free and Compulsory Education for Children Rules there under in 2010 and the State of U.P. has framed the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011. The said Rules have been enforced in exercise of the powers conferred under Section 38 of the 2009 Act w.e.f. 27/07/2011.

6. That Section 23 of the RTE Act says- “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. (3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed."

7. That a perusal of the said provision indicates that the words “minimum qualification” have been used in relation to the appointment as a teacher. A teaching staff of an institution imparting elementary education as defined under the RTE Act has to be engaged to provide free and compulsory education to every child. Section 8 enjoins the appropriate government with a duty to provide quality education and ensure good quality elementary education conforming to the standards and norms specified in the schedule. It also indicates providing training facility to the teacher. Section 8(g) of the Act reads as under-“ensure good quality elementary education conforming to the standards and norms specified in the Schedule.” The responsibilities of the institution includes the responsibility of engaging teachers who are qualified and for this the prescription of qualification has been entrusted to the Academic Authority under Section 23.

8. That Sub-Section (2) of Section 23 gives power to the Central Government to relax the minimum qualifications required for appointment as a teacher for a period not exceeding five years, which appears to have been made with the object that such teachers who on the commencement of the Act do not have the minimum qualification, may acquire the same within a period of five years. Relaxation therefore is in a particular contingency subject to the condition where a State does not have adequate institutions offering courses or training in teacher education or unavailability of teachers possessing minimum qualifications.

9. Section 24 of the Act defines the duties of a teacher which includes the duty to conduct and complete the curriculum in accordance with the provisions of Section 29. Curriculum for the child as contained in Section 29 clearly reflects as to what is required of a teacher who is to implement the said curriculum.

10. That under the aforesaid provisions, the qualifications and the prescription of the norms for possessing qualifications have also been included. Thus, the Central Government has enforced the said Act and has further issued Notifications in this regard. Vide Notification dated 01/04/2010 of the Ministry of Human Resources Development, Government of India (Department of School Education and Literacy), the National Council for Teacher Education (NCTE, for short) was notified as the academic authority for laying down such qualifications. A Notification was issued on 31/03/2010 by the authority and then vide Notification dated 23/08/2010, the minimum qualifications were fixed by the NCTE

11. That within the province of Uttar Pradesh, after the commencement of the U.P. Basic Education Act, 1972, appointment to Schools established by the Board are being governed by the U.P. Basic Education Teachers Service Rules, 1981. The 12th to 16th Amendment to the said Rules, by incorporating the qualifications on account of introduction of the Notification dated 23/08/2010, brought about the change in the qualifications introducing the Teacher Eligibility Test for appointment as an Assistant Teacher.

12. That the very purpose therefore is to provide education as per the standard and norms specified in the schedule.

13. That National Council for Teacher Education (NCTE) was formed under the National Council for Teacher Education Act, 1993 (NCTE Act, for short) which is an Act to provide for the establishment of NCTE with a view to achieving planned and co-ordinated development of the teacher education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher education system and for matters connected therewith.

14. That section 12(d) of the Act as regards FUNCTIONS OF THE COUNCIL says-“ It shall be the duty of the Council to take all such steps as it may think fit for ensuring planned and coordinated development of teacher education and for the determination and maintenance of standards for teacher education and for the purposes of performing its functions under this Act, (d) the Council may lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognised institutions”

15. That section 32(1) of NCTE Act says-“The Council may, by notification in the Official Gazette, make regulations not inconsistent with the provisions of this Act and the rules made thereunder, generally to carry out the provisions of this Act” while section 32(2)(d) (i) says-“In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely :- (d) the norms, guidelines and standards in respect of (i) the minimum qualifications for a person to be employed as a teacher under clause (d) of section 12.”

16. That in accordance with Section 23(1) of the RTE Act, the NCTE had vide Notification dated 23/08/ 2010 and 29/07/2011 laid down the minimum qualifications for a person to be eligible for appointment as a teacher in classes I to VIII. It had been inter alia provided that one of the essential qualifications for a person to be eligible for appointment as a teacher in any of the schools referred to in clause (n) of section 2 of the RTE Act is that he/she should pass the Teacher Eligibility Test (TET) which will be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE.

17. That for Class I to V, Para 1(i)(b) of the above Notification said-“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.” For Class VII to VII, Para 1(ii)(b) made the same qualification as regards TET

18. That 29/07/2011 amendment made in previous Notification but the requirement of TET remained as it is.

19. That NCTE through Notification dated 11/02/2011 issued Guidelines for conducting Teacher Eligibility Test (TET)

20. That Para 3 of these Guidelines says-“The rationale for including the TET as a minimum qualification for a person to be eligible for appointment as a teacher is as under: i. It would bring national standards and benchmark of teacher quality in the recruitment process; ii. It would induce teacher education institutions and students from these institutions to further improve their performance standards; iii. It would send a positive signal to all stakeholders that the Government lays special emphasis on teacher quality”

21. That Para 4 of this Notification says-“The TET examination may be conducted by a suitable professional body designated by the appropriate Government for the purpose. It will be conducted in accordance with the Guidelines hereunder.”

22. That Para 5 about Structure and Content of TET says-“The structure and content of the TET is given in the following paragraphs. All questions will be Multiple Choice Questions (MCQs), each carrying one mark, with four alternatives out of which one answer will be correct. There will be no negative marking. The examining body should strictly adhere to the structure and content of the TET specified below.”

23. That Para 7 says-“There will be two papers of the TET. Paper I will be for a person who intends to be a teacher for classes I to V. Paper II will be for a person who intends to be a teacher for classes VI to VIII. A person who intends to be a teacher either for classes I to V or for classes VI to VIII will have to appear in both papers (Paper I and Paper II).Paper I (for classes I to V); No. of MCQs – 150; Duration of examination: one-and-a-half hours Structure and Content (All Compulsory) (i) Child Development and Pedagogy 30 MCQs 30 Marks (ii) Language I 30 MCQs 30 Marks (iii) Language II 30 MCQs 30 Marks (iv) Mathematics 30 MCQs 30 Marks (v) Environmental Studies 30 MCQs 30 Marks” where MCQ means Multiple Choice questions

24. That Para 7 further says-“(a) Nature and standard of questions- While designing and preparing the questions for Paper I, the examining body shall take the following factors into consideration: The test items on Child Development and Pedagogy will focus on educational psychology of teaching and learning relevant to the age group of 6-11 years. They will focus on understanding the characteristics and needs of diverse learners, interaction with learners and the attributes and qualities of a good facilitator of learning. (b) The Test items for Language I will focus on the proficiencies related to the medium of instruction, (as chosen from list of prescribed language options in the application form) (c) The Language II will be from among the prescribed options other than Language I. A candidate may choose any one language from the available language options and will be required to specify the same in the application form. The test items in Language II will also focus on the elements of language, communication and comprehension abilities. (d) The test items in Mathematics and Environmental Studies will focus on the concepts, problem solving abilities and pedagogical understanding of the subjects. In all these subject areas, the test items shall be evenly distributed over different divisions of the syllabus of that subject prescribed for classes I–V by the appropriate Government (e) The questions in the tests for Paper I will be based on the topics of the prescribed syllabus of the State for classes I–V, but their difficulty standard, as well as linkages, could be upto the secondary stage.”

25. That there are similar tests for classes VI to VII at Para 7 which says-“Structure and Content-(i) Child Development & Pedagogy (compulsory) 30 MCQs 30 Marks (ii) Language I (compulsory) 30 MCQs 30 Marks (iii) Language II (compulsory) 30 MCQs 30 Marks (iv) (a) For Mathematics and Science teacher : Mathematics and Science – 60 MCQs of 1 mark each (b) For Social studies teacher, Social Studies - 60 MCQs of 1 mark each (c) for any other teacher – either 4(a) or 4(b)” where MCQ means Multiple Choice questions

26. That the Guidelines say-“Qualifying marks 9. A person who scores 60% or more in the TET exam will be considered as TET pass. School managements (Government, local bodies, government aided and unaided)(a) may consider giving concessions to persons belonging to SC/ST, OBC, differently abled persons, etc., in accordance with their extant reservation policy; (b) should give weightage to the TET scores in the recruitment process; however, qualifying the TET would not confer a right on any person for recruitment/employment as it is only one of the eligibility criteria for appointment.”

27. That Para 10 says-“(a) TET conducted by the Central Government shall apply to all schools referred to in sub-clause (i) of clause (a) of section 2 of the RTE Act. (b) TET conducted by a State Government/UT with legislature shall apply to : (i) a school of the State Government/UT with legislature and local authority referred to in sub-clause (i) of clause (n) of section 2 of the RTE Act; and (ii) a school referred to in sub-clause (ii) of clause (n) of section 2 of the RTE Act in that State/UT. A school at (i) and (ii) may also consider eligibility of a candidate who has obtained TET Certificate awarded by another State/UT with legislature. In case a State Government/UT with legislature decides not to conduct a TET, a school at (i) and (ii) in that State/UT would consider the TET conducted by the Central Government. (c) A school referred to in sub-clause (iv) of clause (n) of section 2 of the RTE Act may exercise the option of considering either the TET conducted by the Central Government or the TET conducted by the State Government/UT with legislature.”

28. That many issues related with TET were discussed and decided by a three-member bench of Hon'ble Sunil Ambwani,J., Hon'ble A.P. Sahi,J. and Hon'ble P.K.S. Baghel,J. of this Hon’ble Court at the Allahabad bench in Shiv Kumar Sharma Vs. State of U.P. & others (Civil Misc. Writ Petition No. 12908 of 2013) and others

29. That the Hon’ble Court raised questions like-“ (a) What does the phrase "minimum qualifications" occurring in Section 23 (1) of the right of Children to Free and Compulsory Education Act, 2009 (the Act) mean - whether passing the 'Teacher's Eligibility Test', is a qualification for the purposes of Section 23 (1), and it insistence by the NCTE in the Notification dated 23.8.2010 is in consonance with the powers delegated to the NCTE under Section 23 (1) of the Act? (b) Whether clause 3 (a) of the Notifications dated 23.8.2010 and 29.7.2011 issued by the NCTE under Section 23 (1) of the Act, permits persons coming under the ambit of that clause to not undergo the 'Teacher's Eligibility Test', before they are eligible for appointment as Assistant Teachers?”

30. That in its final conclusion, the Hon’ble Court said-“The questions that have been therefore framed by us are answered as follows:- 1. The teacher eligibility test is an essential qualification that has to be possessed by every candidate who seeks appointment as a teacher of elementary education in Classes 1 to 5 as per the notification dated 23.8.2010 which notification is within the powers of the NCTE under Section 23(1) of the 2009 Act. 2. Clause 3(a) of the notification dated 23.8.2010 is an integral part of the notification and cannot be read in isolation so as to exempt such candidates who are described in the said clause to be possessed of qualifications from the teacher eligibility test. 3. We approve of the judgment of the division bench in Prabhakar Singh's case to the extent of laying down the interpretation of the commencement of recruitment process under Clause 5 of the notification dated 23.8.2010 but we disapprove and overrule the ratio of the said decision in relation to grant of exemption and relaxation from teacher eligibility test to the candidates referred to in Clause 3 (a) of the notification dated 23.8.2010, and consequently, hold that the teacher eligibility test is compulsory for all candidates referred to in Clause 1 and Clause 3 (a).”

31. That the Hon’ble Court said-“As observed hereinabove, the teacher eligibility test cannot be taken out of the definition of qualification being an additional norm. If that is so, then the first question stands answered that the National Council for Teacher Education being the Academic Authority is empowered to fix the minimum qualification which includes a Teacher Eligibility Test.”

32. That the Hon’ble Court gave reasons for this as follows-“It is therefore not only to get the best available candidates for teaching but also to ensure a uniform pattern throughout the nation for employing teachers to provide quality education at the elementary level. To further understand as to why the teacher eligibility test is a qualification one can refer to the guidelines dated 11th February, 2011 where the background and rationale for conducting the said test has been referred.”

33. That the Hon’ble Court said-“After the enforcement of the notification dated 23.8.2010 every candidate aspiring to become a teacher of elementary education in any of the institutions defined under the 2009 Act has to be possessed of the qualifications prescribed therein. The intention therefore of the legislature is clear that no teacher without such a qualification can be allowed to continue as a teacher in the institution.”

34. That the above facts make it very clear that TET is a necessary and essential qualification for each and every primary teacher

35. That a natural corollary to this is that the TET has also to be of the same format and structure as prescribed by NCTE in the above mentioned Notification dated 110/02/2011 because the Central Government has vide Notification dated 01/04/2010 notified NCTE as the academic authority for laying down such qualifications, which includes the validity and authority of notification dated 11/02/2011 as regards the format and structure of TET test.

36. That unlike this, what is happening in Uttar Pradesh in a particular case is truly worrisome.

37. That based on the NCTE notifications dated 23/08/2010 and 29/09/2011, the Uttar Pradesh- Teachers Eligibility Test (UP-TET, for short) was organized in Uttar Pradesh by the Pariksha Niyamak Pradhikari, Uttar Pradesh of the Uttar Pradesh State Council Of Educational Research & Training, Lucknow

38. That appropriate guidelines were issued for UP-TET. Four kinds of UP-TET exams were held- (a) प्राथमिक स्तर (कक्षा एक से पांच) (Primary level- class I to V) (b) भाषा शिक्षक पात्रता प्राथमिक स्तर (language teacher- primary level) (c) उच्च प्राथमिक स्तर (Upper Primary level) (d) भाषा शिक्षक पात्रता उच्च प्राथमिक स्तर (language teacher- upper primary level)

39. That language teachers of primary and upper primary levels were for three languages- Sanskrit, English and Urdu

40. That thus TET exams were artificially segregated into two groups- (a) General teachers (b) language teachers, for both primary level and upper primary level. This kind of division or segregation of primary level and upper primary level teachers has been prescribed nowhere in the entire gamut of Acts, Rules, Regulations, Bye-laws, officer memorandum etc and it is only in the State of Uttar Pradesh that this concept of language teachers has been introduced.

41. That section 23 of the RTE Act about qualifications for appointment and terms and conditions of service of teachers clearly states that minimum qualifications for teachers can be laid down only by an academic authority authorised by the Central Government, by notification and if 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

42. That thus any teacher for primary or upper primary schools need necessarily to have the qualifications as prescribed by the competent authority authorized by the Central government or State government needs to take specific permission in this regards from the Central government. To the best of the petitioner’s knowledge, no such permission has been taken by the State of UP to make any kind of relaxation as regards appointment of its teachers, whether the General teachers or the so-called language teachers.

43. That hence the minimum qualifications and criteria fixed by NCTE as the competent body hold true equally for General teachers and the artificially created language teachers

44. That a perusal of the said provisions also indicates that the words “minimum qualification” have been used in relation to the appointment as a teacher. As stated above, in accordance with Section 23(1) of the RTE Act, the NCTE had vide Notification dated 23/08/ 2010 and 29/07/2011 has already laid down the minimum qualifications for a person to be eligible for appointment as a teacher in classes I to VIII, where one of the essential qualifications for appointment as a teacher in any of the schools referred to in clause (n) of section 2 of the RTE Act is that he/she should pass the Teacher Eligibility Test (TET) which will be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE.

45. That NCTE through Notification dated 11/02/2011 has already issued Guidelines for conducting Teacher Eligibility Test (TET) as explained above. Again, as explained above, the three-member bench of this Hon’ble Court in Shiv Kumar Sharma (supra) has made it very clear that “The teacher eligibility test is an essential qualification that has to be possessed by every candidate who seeks appointment as a teacher of elementary education in Classes 1 to 5 as per the notification dated 23.8.2010 which notification is within the powers of the NCTE under Section 23(1) of the 2009 Act” and “the first question stands answered that the National Council for Teacher Education being the Academic Authority is empowered to fix the minimum qualification which includes a Teacher Eligibility Test” and hence every condition laid down by NCTE including its format, structure and instructions for TET have a complete and obligatory legal mandate which cannot be taken away or deviated by any State government.

46. That but against these facts, the State of Uttar Pradesh has made complete diversion and deviation from this prescribed scheme for language teachers

47. That while the State of UP conducted UP-TET in 2012 as per the mandate prescribed by NCTE and there was no deviation there, for UP-TET for the year 2013, both primary and upper primary level language teachers, the scheme was as follows- (a) Child development and pedagogy- 30 marks (b) comprehension (prose + poem)- 30 marks (c) Grammar (definitions, gender, phrase, numbers, poetry analysis)- 30 marks (d) language expression- 60 marks, while the TET examination pattern for other teachers (General or non-language teachers) was in accordance with the NCTE guidelines where the test was conducted in the prescribed five parts. Thus for Urdu, Sanskrit and English teachers, the question booklet contained 90 multiple choice type questions, with four alternative answers. The question paper had four parts. First three parts are multiple choice questions. Part-I had questions from Child Development and Cognition (Common for English, Sanskrit and Urdu). Part II had comprehension (prose + poem) of 30 marks and Part III had Grammar (definitions, gender, phrase, numbers, poetry analysis) of 30 marks in concerned language. Part IV consisted of essay questions of 60 marks for language expression. A copy of the first page of the UP-TET test for 2013 language teacher is being attached as Annexure No 1.

48. That thus for language teachers for primary and upper primary teachers, the mandate of TET had been clearly deviated

49. That for UP-TET for 2014, the situation is even worse for language teachers. While the TET test for General (non-language) teachers is in accordance with the NCTE guidelines, the UP-TET for language teachers consisted on 150 multiple choice questions divided into two parts. Part-I has questions from Child Development and Cognition (Common for English, Sanskrit and Urdu). The rest of 120 questions for the three languages consist only of language papers in English, Sanskrit and Urdu. A copy of the answer sheet provided by the examination body for English language teachers is being attached as Annexure No 2

50. That it is quite opposed to the mandatory provisions provided by NCTE which say that for primary teachers,150 Multiple choice questions shall be asked, where for primary teachers, it shall be-“(i) Child Development and Pedagogy 30 questions (ii) Language I 30 questions (iii) Language II 30 questions (iv) Mathematics 30 questions (v) Environmental Studies 30 questions” and for upper-primary teachers, it shall be-“(i) Child Development & Pedagogy (compulsory) 30 questions (ii) Language I (compulsory) 30 questions (iii) Language II (compulsory) 30 questions (iv) (a) For Mathematics and Science teacher : Mathematics and Science – 60 MCQs of 1 mark each (b) For Social studies teacher, Social Studies - 60 MCQs of 1 mark each (c) for any other teacher – either 4(a) or 4(b)”

51. That thus it can be easily seen that while NCTE provides 5 definite papers for TET conducted by the Central government as well as by the various State governments for primary schools, in UP, in the year 2013, the TET examination for the so-called language teachers consisted only of four papers so that while 30 marks question for Child development and pedagogy was asked as per NCTE provision, all the other mandate like Language I 30 questions, Language II 30 questions, Mathematics 30 questions and Environmental Studies 30 questions were not asked. Instead, on its own, the State of UP included multiple choice questions on comprehension (prose + poem)- 30 marks, Grammar (definitions, gender, phrase, numbers, poetry analysis)- 30 marks and essay type questions for language expression- 60 marks. This clearly violates the mandate of NCTE, which has been described to be mandatory in a given format by this Hon’ble Court itself in Shiv Kumar Sharma (supra)

52. That similarly, for both primary and secondary level language teachers, the TET 2014 has 150 multiple choice questions but only 30 of these questions are as regards Child development and cognition in Part I of the paper as mandated by NCTE while the rest of the paper for the three language teachers consists of 120 multiple choice questions in the given language itself.

53. That thus in TET 2013, for language teachers, no question has been asked from Language I, Language II, Mathematics 30 and Environmental Studies and the same situation remained in TET 2014. Thus for language teachers for primary and upper primary teachers, the mandate of TET had been clearly deviated and it is against this violation of mandatory provisions that the petitioner has come before this Hon’ble Court

54. That as can be easily seen and as so nicely expressed by this Hon’ble Court in Shiv Kumar Sharma (supra)- “It is therefore not only to get the best available candidates for teaching but also to ensure a uniform pattern throughout the nation for employing teachers to provide quality education at the elementary level”, “In our province the dwindling number of students being admitted to primary schools run by the Board or by the Government is alarming. It would not be inappropriate to comment that a teacher of a primary school used to be a school teacher but has no class now”, “elementary education is the best paying investment for future life. The training of a child, that is an integral part of child development, is essential for his grooming, as a human mind, without proper training is like a horse without a bridle difficult to ride. Children in their cradle of life with the help of teachers can mould their lives for higher ambitions in their manhood. To assess and mould children with these ideals is the job of a skilled teacher and the art of such skill is pedagogy. Teachers have to serve the larger interest of the society as they are building the future”, “Their emotional and skilful assessment, and proper treatment, has to be handled within the clinic of an elementary school where the sole physician is none else than a trained teacher. A candidate possessing a mere educational or a training qualification without any genuine attribute may not necessarily be a good teacher”, “the purpose of a teacher eligibility test is to ensure that the candidate claiming himself to be possessed of such attributes and abilities, has actually acquired his academic and training qualifications genuinely”, “It should not be forgotten that a school is a building that has four walls - with tomorrow inside” “A school is not an outlet for parents. It is an institution where the blacksmith and goldsmith of education sit together and chisel the best of human products. Children are the poor man's riches and the rich man's asset. In both cases a good man dies when a child goes wrong. It is for this reason that elementary education is the best paying investment for future life. The training of a child, that is an integral part of child development, is essential for his grooming, as a human mind, without proper training is like a horse without a bridle difficult to ride. Children in their cradle of life with the help of teachers can mould their lives for higher ambitions in their manhood. To assess and mould children with these ideals is the job of a skilled teacher and the art of such skill is pedagogy. Teachers have to serve the larger interest of the society as they are building the future. Henry Brooks Adams said, "A teacher affects eternity; he can never tell where his influence stops" and more appropriately Christa Mcauliffe said "I touch the future. I teach". This requires the possession of virtues like sacrifice and honour which in turn brings respect to the status of a teacher and infuses confidence in the pupil” “Their emotional and skilful assessment, and proper treatment, has to be handled within the clinic of an elementary school where the sole physician is none else than a trained teacher. A candidate possessing a mere educational or a training qualification without any genuine attribute may not necessarily be a good teacher” make it very apparent that the matter related with well-qualified teachers for elementary education is a matter of great public concern

55. That in UP, after undertaking these improper UP-TET examinations, the State of UP is also inducting primary language teachers through these UP-TET examinations. For instance, a Government order No 3181/79-5-2013-4127/2011 dated 17/08/2013 announced appointment of 4280 Assistant Teachers (Urdu language) for the primary schools run by the Uttar Pradesh Basic Shiksha Parishad where UP-TET was also permitted as the requisite criteria or qualification. Many District Basic Education officers have already completed the appointment process for these posts which began in August 2013. For instance, the Basic Shiksha Adhikari, Faizabad through an advertisement dated 19/08/2013 announced appointment process for 98 posts. After the first phase of appointment a second phase has also begun where for example, the appointment process having begun in district Firozabad (for 11 left posts) through advertisement dated 15/02/2014 issued by the Basic Shiksha Adhikari of the district, in Sant Kabir Nagar (for 66 left posts)through advertisement dated 14/02/2014 issued by the Basic Shiksha Adhikari of Sant Kabir Nagar and in Deoria (for 37 left posts)through advertisement dated 14/02/2014 issued by the Basic Shiksha Adhikari of Deoria.

56. That similar appointments for Assistant teacher (Urdu language) for many districts has already taken place where the teachers are those who have the minimum qualification of UP-TET as described above, which goes against the mandatory requirements prescribed by NCTE. Such appointments for the same posts are also currently underway as explained in the above Para, through citing three specific examples

57. That it is obvious that this is against the mandate and is also detrimental to the larger public interest because as explained above, if teachers with inappropriate or improper qualifications get selected, it is going to have directly ruinous effect on elementary education.

58. That thus as explained in the above Para, the petitioner having no personal interest but definitely having larger number of reasons for being related with larger public interest, constitutes a PIL in the true sense of the word.

59. That in this regards, the role of this Hon’ble Court becomes extremely important and highly crucial as the last sentinel of justice and hence the petitioner being aggrieved by the action of the respondent and having no any other efficacious alternative remedy available with him, is filing this petition on the following amongst other grounds :

60. That the photograph and the Identity proof are being attached with the Petition

GROUNDS:

1. Because elementary education has extremely important role in society

2. Because Article 45 of the Indian Constitution and Article 21-A regarding “Right to education” brings out the importance given to elementary education

3. Because the Right to Free and Compulsory Education for Children Act, 2009 (RTE Act, for short) further proves the importance of elementary education

4. Because the Central Government and the State of U.P. have already framed Rules to enforce the RTE Act

5. Because section 23 of the RTE Act prescribes qualifications for appointment and terms and conditions of service of teachers saying that 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

6. Because section 8 enjoins the appropriate government with a duty to provide quality education and ensure good quality elementary education conforming to the standards and norms specified in the schedule.

7. Because section 8(g) of the Act reads as under-“ensure good quality elementary education conforming to the standards and norms specified in the Schedule.”

8. Because the National Council for Teacher Education (NCTE, for short) is the academic authority for laying down minimum qualifications for teachers

9. Because through Notification dated 23/08/2010 by NCTE the minimum qualifications were fixed by the NCTE

Because NCTE had vide Notification dated 23/08/ 2010 and 29/07/2011 laid down the minimum qualifications for a person to be eligible for appointment as a teacher in classes I to VIII.

Because it had been inter alia provided that one of the essential qualifications for a person to be eligible for appointment as a teacher in any of the schools referred to in clause (n) of section 2 of the RTE Act is that he/she should pass the Teacher Eligibility Test (TET) which will be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE.

Because NCTE through Notification dated 11/02/2011 issued Guidelines for conducting Teacher Eligibility Test (TET)

Because Para 7 of these Guidelines provide the Structure and Content for both primary and upper primary teachers

Because many issues related with TET were discussed and decided by a three-member bench of this Hon’ble Court at the Allahabad bench in Shiv Kumar Sharma Vs. State of U.P. & others (Civil Misc. Writ Petition No. 12908 of 2013) and others which ordered that the teacher eligibility test is an essential qualification that has to be possessed by every candidate who seeks appointment as a teacher of elementary education in Classes 1 to 5

Because the above is being violated in Uttar Pradesh for language teachers, as explained in details in the Writ Petition

Because it has a larger public interest involved in it

PRAYER:

Wherefore, it is most respectfully prayed that this Hon’ble Court may be pleased to-

(a) kindly issue an appropriate writ directing the concerned respondents to immediately quash all the examinations being presently in process for Uttar Pradesh Teacher’s Eligibility Test (UP-TET, for short) for language teachers for primary and upper-primary schools for the year 2014 being conducted in flagrant and direct violation of the mandatory requirements prescribed by the National Council for Teacher Education (NCTE, for short) and to accordingly direct the concerned respondents to conduct these UP-TET tests for 2014 and subsequent years only as per all the mandatory requirements prescribed by NCTE, including that provided in the notification dated 11/02/2011 titled “Guidelines for conducting Teacher Eligibility Test (TET)”

(b) to kindly issue an appropriate writ directing the concerned respondents to immediately quash all the previous examinations already conducted for Uttar Pradesh Teacher’s Eligibility Test (UP-TET, for short) for language teachers for primary and upper-primary schools for the year 2013 and to accordingly direct the concerned respondents to conduct UP-TET tests for 2013 again only as per all the mandatory requirements prescribed by NCTE, including that provided in the above-mentioned notification dated 11/02/2011

(c) to kindly issue an appropriate writ to the concerned respondents to end/terminate the process of appointment of primary and upper primary teachers for language teachers currently being undertaken through the UP-TET examination 2013 for language teachers conducted against the mandatory requirements prescribed by NCTE including that provided in the above-mentioned notification dated 11/02/2011

(d) to kindly direct the concerned respondents to quash all the appointments previously done for language teachers for Primary and upper primary schools, done through previous UP-TET examinations for language teachers conducted in flagrant violation of mandatory provisions directed by NCTE, including that provided in the above-mentioned notification dated 11/02/2011

(e) Issue any other order or direction as this Hon’ble Court may deem fit in the circumstances of the case for the larger public cause being presented here

Place- Lucknow                                              (Dr Nutan Thakur)
Dated-   25/03/2014                                               Petitioner in Person
                                                                              # 94155-34525

In the Hon’ble High Court of Judicature at Allahabad, Lucknow Bench, Lucknow

Writ petition No- of 2014 (PIL-Civil)

Dr Nutan Thakur Petitioner

Versus

State of UP Respondent

AFFIDAVIT

I, Dr Nutan Thakur, aged about 40 years, w/o Sri Amitabh Thakur r/o 5/426, Viram Khand, Gomti Nagar, Lucknow, religion Hinduism, education- MA, Phd, profession- Social activism, the deponent, do hereby solemnly affirm and state on oath as under-

1. That the deponent is the sole petitioner in the above noted petition and as such she is fully conversant with the facts and circumstances of the case, deposed to hereunder

2. That the contents of the paragraphs 1 to

of the Writ petition are true to my personal knowledge,

based on documents and records and believed to be true and

are based on legal advice.

3. That the contents of Annexure No NONE of the Writ Petition are true copies of their original documents.

Place- Lucknow                                              (Dr Nutan Thakur)
Dated-   22/02/2014                                               Petitioner in Person
                                                                              # 94155-34525

VERIFICATION

I, the deponent above named, do hereby verify that the contents of paragraphs 1 to 3 above this Affidavit are true and correct to my knowledge and belief. No part of it is false and nothing material has been concealed. So, help me God

Signed and verified this the day of 2014 at Lucknow

Deponent

Identification

I identify the deponent, on the basis of records produced before me, who has signed before me.

Advocate

Solemnly affirmed me on at am/pm by the deponent Nutan Thakur, who has been identified by Sri clerk to Sri , Advocate, high court, Lucknow Bench, Lucknow

I have satisfied myself by examining the deponent that she understands the contents of this Affidavit which have been read over and explained to her by me

Oath Commissioner

Civil Misc. Writ Petition No. 12908 of 2013
Shiv Kumar Sharma Vs. State of U.P. & others

and others Hon'ble Sunil Ambwani,J., Hon'ble A.P. Sahi,J. , Hon'ble P.K.S. Baghel,J.

To address the issue involved, we had heard the matter and framed 3 questions as follows:-

"(a) What does the phrase "minimum qualifications" occurring in Section 23 (1) of the right of Children to Free and Compulsory Education Act, 2009 (the Act) mean - whether passing the 'Teacher's Eligibility Test', is a qualification for the purposes of Section 23 (1), and it insistence by the NCTE in the Notification dated 23.8.2010 is in consonance with the powers delegated to the NCTE under Section 23 (1) of the Act?

(b) Whether clause 3 (a) of the Notifications dated 23.8.2010 and 29.7.2011 issued by the NCTE under Section 23 (1) of the Act, permits persons coming under the ambit of that clause to not undergo the 'Teacher's Eligibility Test', before they are eligible for appointment as Assistant Teachers? What is the significance of the words "shall also be eligible for appointment for Class-I to V upto 1st January, 2012, provided he undergoes, after appointment an NCTE recognized six months special programme in elementary education"?

(c) Whether the opinion expressed by the Division Bench in Prabhakar Singh and others Vs. State of U.P. and others, 2013 (1) ADJ 651 (DB), is correct in law?"

At the national level a debate was going on and a Committee under the Chairmanship of Prof. B.G. Kher recommended the incorporation of Article 45 of the Constitution in the Chapter of Directive principle of State policy which read as under:-

"Article 45-- The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years."

Article 21-A is quoted herein below:-

"21-A. Right to education.-- The State shall 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."

This Constitutional change heralded the framing of the Right to Free and Compulsory Education for Children Act, 2009. The Central Government has framed Rules thereunder in 2010 and the State of U.P. has framed The Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011. The said Rules have been enforced in exercise of the powers conferred under Section 38 of the 2009 Act w.e.f. 27.7.2011.

Under the aforesaid provisions, the qualifications and the prescription of the norms for possessing qualifications have also been included. Thus, the Central Government has enforced the said Act and has further issued Notifications in this regard. Vide Notification dated 1.4.2010 of the Ministry of Human Resources Development, Government of India (Department of School Education and Literacy), the National Council for Teacher Education was notified as the academic authority for laying down such qualifications. A Notification was issued on 31.3.2010 by the authority and then vide Notification dated 23.8.2010, the minimum qualifications were fixed by the National Council for Teacher Education which is subject matter of consideration before this Full Bench.

At this juncture, it would be relevant to mention that within the province of Uttar Pradesh after the commencement of the U.P. Basic Education Act, 1972, appointment to Schools established by the Board are being governed by the U.P. Basic Education Teachers Service Rules, 1981. The 12th to 16th Amendment to the said Rules, by incorporating the qualifications on account of introduction of the Notification dated 23.8.2010, bring about the change in the qualifications introducing the Teacher Eligibility Test for appointment as an Assistant Teacher. It is in this historical and legal background that we have to proceed to answer the questions raised before us.

Section 23 of the 2009 Act is quoted herein under:-

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.

(3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed."

A perusal of the said provision indicates that the words minimum qualification have been used in relation to the appointment as a teacher. A teaching staff of an institution imparting elementary education as defined under the 2009 Act has to be engaged to provide free and compulsory education to every child. Section 8 enjoins the appropriate government with a duty to provide quality education and ensure good quality elementary education conforming to the standards and norms specified in the schedule. It also indicates providing training facility to the teacher. The responsibilities of the institution includes the responsibility of engaging teachers who are qualified and for this the prescription of qualification has been entrusted to the Academic Authority under Section 23.

Sub-Section (2) of Section 23 gives power to the Central Government to relax the minimum qualifications required for appointment as a teacher for a period not exceeding five years, which appears to have been made with the object that such teachers who on the commencement of the Act do not have the minimum qualification, may acquire the same within a period of five years. Relaxation therefore is in a particular contingency subject to the condition where a State does not have adequate institutions offering courses or training in teacher education or unavailability of teachers possessing minimum qualifications.

As noted above with the constitutional mandate contained in Entry 25 of List 3, there is no doubt that the powers vest with the Union to frame a law. The 2009 Act was brought into force with the object of providing free and compulsory education to children with clear insistence on quality elementary education. Section 8(g) of the Act reads as under:- 8(g). ensure good quality elementary education conforming to the standards and norms specified in the Schedule.

The very purpose therefore is to provide education as per the standard and norms specified in the schedule. Section 24 of the Act defines the duties of a teacher which includes the duty to conduct and complete the curriculum in accordance with the provisions of Section 29. Curriculum for the child as contained in Section 29 clearly reflects as to what is required of a teacher who is to implement the said curriculum. Thus qualitatively, the teacher has to conform to standards that ensure good quality elementary education. It is correct that eligibility means the minimum criteria for selection but in the instant case the teacher eligibility test is not a minimum criteria fixed for selection. It is an essential integral part, other than the educational and training qualification prescribed, to be possessed by a candidate before he is appointed as a teacher.

Qualification is the state of being qualified which means to possess the necessary qualities or competency to make oneself eligible or suitable. It is therefore a necessary and essential feature to be possessed, and not a mere eligibility criteria. Teacher eligibility test is an additional norm laid down by the Academic Authority which according to the decision of Preeti Srivastava's case serves the definition of qualification. The contention therefore raised by Sri Agrawal that the teacher eligibility test is not a qualification has to be rejected. It is not a part of something which is to be possessed at the minimum. It has to be possessed in addition to the educational and training qualification.

As observed hereinabove, the teacher eligibility test cannot be taken out of the definition of qualification being an additional norm. If that is so, then the first question stands answered that the National Council for Teacher Education being the Academic Authority is empowered to fix the minimum qualification which includes a Teacher Eligibility Test.

Coming to the second limb of the argument, the purpose of a teacher eligibility test is to ensure that the candidate claiming himself to be possessed of such attributes and abilities, has actually acquired his academic and training qualifications genuinely. The capacity of a candidate claiming to be possessed of the educational and training qualifications has therefore to be screened to treat him to be qualified and then eligible for being appointed as a teacher. This is in tune with the object of 2009 Act to provide good and quality education at the elementary level with the aid of the best teachers. If the Council, duly authorised by the Central Government, has prescribed this norm which is for the purpose of ensuring the implementation of the Act, then the argument that the prescription is ultra vires to Section 23 of the Act has to be rejected.

There also the word qualification came up for consideration and the apex court after having noticed the requirement came to the conclusion that there has to be a uniform scrutiny of all the candidates as they are possessed of educational and training qualifications from different sources. The eligibility test therefore is to ensure that candidates coming with diverse educational and training qualifications acquired from different sources are assessed uniformly for the purpose of being selected as the best material for being appointed as a teacher. This is another essential ingredient of a eligibility test, which has been designed as in the present case to ensure an even method of selection. It is for this reason that the curriculum of the teacher eligibility test at the national level has been prescribed by the National Council for Teacher Education for it being implemented throughout the country. It is therefore not only to get the best available candidates for teaching but also to ensure a uniform pattern throughout the nation for employing teachers to provide quality education at the elementary level.

To further understand as to why the teacher eligibility test is a qualification one can refer to the guidelines dated 11th February, 2011 where the background and rationale for conducting the said test has been referred. We may mention at the outset that the said guidelines had totally escaped the notice of the division bench and its ingredients while proceeding to treat the teacher eligibility test to be not necessary for the candidates falling under Clause 3 of the Notification dated 23.8.2010. The guidelines provide that persons to be recruited as teachers should possess the essential aptitude and ability to meet the challenges of teaching at the elementary level. The consequences were explained by the rationale that it would bring about national standards and bench mark of teacher quality in the recruitment process. It would further induce teacher education institutions to improve their performance standards and a positive signal to all stake holders that the Government lays special emphasis on teacher quality. This rationale therefore justifies the teacher eligibility test as an additional norm apart from the educational and training qualifications.

This is fortified by Clause 5 of the guidelines dated 11.2.2011 which says that a person who has acquired the academic and professional qualification under the notification dated 23.8.2010 shall be eligible for appearing in the teacher eligibility test. This Clause leaves no room for doubt that all classes of candidates possessing the academic and professional qualifications would be eligible to appear in the teacher eligibility test and therefore it is a norm which is compulsory for all classes of teachers including those who fall within Clause 3 of the notification dated 23.8.2010.

The next is the structure and content of the test which has five sections in relation to examination for Classes 1 to 5 with which we are presently concerned. These five sections are Child Development and Pedagogy, Language 1 - focussing on proficiency relating to medium of instruction, Language 2- an optional language, Mathematics and Environmental Studies. The test items for the last two subjects should be correlated with concepts of problem solving ability and pedagogical understanding of the subject.

At this stage the importance of Child Development and Pedagogy deserves to be emphasised in the backdrop of the social environment that requires a mention when the province is facing not only a shortage of numbers, but an acute shortage of duly qualified and educated teachers at the primary level.

The subject of Child Development and Pedagogy assumes importance and consequently a teacher eligibility test no longer remains a mere eligibility test but becomes the most essential qualification to be possessed for being appointed as a teacher. The word Pedagogy is derived from the word Pedagogue. It originates from the combination of two Greek words, Piados which means Boy and Agogos which means leading or guiding. In ancient times a Greek Slave who was charged with the care of his master's child in his youth with a job to escort the child, to and fro, from school, was known as a pedagogue. Slowly with the passage of time the said word came to be adopted as a synonym for a person who taught in a class room, and was a tutor as he was supposed to lead or guide a child. Thus Pedagogy came to be acknowledged as a science that related to the skill of teaching. It became a scientific art and was developed for the very purpose and aim of Child Development.

In our province the dwindling number of students being admitted to primary schools run by the Board or by the Government is alarming. It would not be inappropriate to comment that a teacher of a primary school used to be a school teacher but has no class now. The apathy and the non-cooperating attitude of guardians is largely due to inefficient handling of their children in such schools. This in turn has led to mushrooming of innumerable private elementary schools that are also sought to be curtailed by strict enforcement of 2009 Act. One of the reasons is also the change in social conditions as parents these days have to obey their children and not vice versa. It is in this context that the teachers have also lost their directions even though "teaching is not a lost art, but the regard for it is a lost tradition.". (Jacques Barzun). It should not be forgotten that a school is a building that has four walls - with tomorrow inside.

Children these days are at times sent away by parents to school as if they are an unnecessary strain on them. Children with this background, if not treated properly at school, visualise it as a torture house. A school is not an outlet for parents. It is an institution where the blacksmith and goldsmith of education sit together and chisel the best of human products. Children are the poor man's riches and the rich man's asset. In both cases a good man dies when a child goes wrong. It is for this reason that elementary education is the best paying investment for future life. The training of a child, that is an integral part of child development, is essential for his grooming, as a human mind, without proper training is like a horse without a bridle difficult to ride. Children in their cradle of life with the help of teachers can mould their lives for higher ambitions in their manhood. To assess and mould children with these ideals is the job of a skilled teacher and the art of such skill is pedagogy. Teachers have to serve the larger interest of the society as they are building the future. Henry Brooks Adams said, "A teacher affects eternity; he can never tell where his influence stops" and more appropriately Christa Mcauliffe said " I touch the future. I teach". This requires the possession of virtues like sacrifice and honour which in turn brings respect to the status of a teacher and infuses confidence in the pupil.

Many children are victims of apathy and wrongly motived parental treatment. Their emotional and skilful assessment, and proper treatment, has to be handled within the clinic of an elementary school where the sole physician is none else than a trained teacher. A candidate possessing a mere educational or a training qualification without any genuine attribute may not necessarily be a good teacher.

It is in this background that one may remember those who have contributed to this skilful art of pedagogy. In the modern world the great philosopher and Educationist Rousseau, followed by the Swiss Predecessor of his German Pupils, Pestalozzi, are worth remembering. They were followed by the famous Germans Herbart and Froebel. The English with Lancaster and Bell followed suit and in the modern world it would be improper to forget the great contributions of Maria Montessori.

We would now like to delve on the reasoning given by the division bench to treat Clause 3 in isolation. We may at the very outset observe that the division bench has omitted to consider the declaration in the notification dated 10th September, 2012 itself where Clause 2 leaves no room for doubt that all teachers who are candidates for Classes 1 to 8 have to appear in the teacher eligibility test. Clause 4, of the guidelines issued by the Central Government for relaxation under Section 23(2) dated 8.11.2010 which has been referred to in the division bench judgment, clearly mandates that the Central Government shall not relax the TET qualification. The guidelines dated 11th September, 2012 that have been framed in the exercise of powers under Section 35 of the NCTE Act, 1993 leave no room for doubt that the prescription is for all classes of candidates who want to become a teacher from Classes 1 to 8 uniformly. The test has been bifurcated between lower primary classes and upper primary classes, namely for Classes 1 to 5 and Classes 5 to 8. The said guidelines do not draw any distinction between the candidates possessed of the qualifications under Clause 1 and Clause 3. The exemption notification dated 11th September, 2012 was in response to a request made by the State Government dated 26th July, 2012. We have carefully examined the same and we find that the State Government had not sought any exemption or relaxation in relation to TET for the candidates falling in the category of Clause 3. It was only the extention of the date for acquiring qualifications upto 31st March, 2014 that had been requested for, and was granted by way of relaxation. This was because of the specific prohibition contained in the guideline dated 8.11.2010 that no relaxation is contemplated for TET qualification. The same further fortifies it to be an essential qualification. The Notifications and the guidelines clearly indicate that there shall be no relaxation in the requirement of passing the teacher eligibility test. We therefore fail to find any support in the reasoning of the division bench in Prabhakar Singh's case to read Clause 3 in isolation so as to exempt such candidates from appearing in TET.

The rule of harmonious construction to interpret a statute requires the consideration of the objects and reasons of the provision and all other ancillary material that comes to the aid for implementing the object and purpose of the statute. The division bench in our humble opinion did not adhere to this principle and did not refer to this ancillary material including the NCTE guidelines dated 11.2.2011 or to Clause 4 of the guideline of the Central Government dated 8.11.2010 to assess the correct applicability of the teacher eligibility test for all candidates uniformly. Merely because the teacher eligibility test was not additionally mentioned in Clause 3 would not dilute the intent and purpose of the test, that is meant for all teachers from Classes 1 to 8.

The legislative competence and the intent therefore lead to the conclusion that the Central Government has authorised the National Council for Teacher Education to make provisions and which have been carefully en-grafted in the Notification dated 23.8.2010. The State Government has followed suit. However, the State Government delayed the incorporation as the Rules were framed by it later on in 2011 and the 1981 Rules were amended much later. The 12th, 13th, 14th, 15th and 16th amendment in the 1981 Rules were brought at a later period. In our opinion, however, merely because the State incorporated these provisions in its rules later on would not take away the impact of the norms prescribed by the National Council for Teacher Education that stood enforced w.e.f. 23.8.2010. The delegated legislation of the State Government was subject to the primary legislation of the Central Government. The framing of rules as a subordinate legislation is subservient to the provisions framed by the Central Government. The notification dated 23.8.2010 therefore has an overriding effect and it could not have been ignored. If the State Government has proceeded to make appointments after 23.8.2010 without complying with the provisions of teacher eligibility test then such appointments would be deficient in such qualification.

It may be emphasised that there is no challenge raised to such appointments against rules, but the law is certain that appointment de-hors the rules cannot be said to be valid. After the enforcement of the notification dated 23.8.2010 every candidate aspiring to become a teacher of elementary education in any of the institutions defined under the 2009 Act has to be possessed of the qualifications prescribed therein. The intention therefore of the legislature is clear that no teacher without such a qualification can be allowed to continue as a teacher in the institution. We wish to clarify that the binding effect of the notifications and the guidelines is such that the weightage which is contemplated under the guidelines dated 11th February, 2011 cannot be ignored. The minimum score that is required of a candidate is 60% to pass the teacher eligibility test. A concession of 5% has been made in favour of the reserved category candidates including the physically challenged and disabled persons. This norm therefore cannot be diluted. Apart from this, the State Government has to take notice of the fact that weightage has to be given in the recruitment process as well. It is for the State Government to suitably adopt the said guidelines and we do not wish to add anything further at this stage as we are only concerned with the essentiality of the qualification of the teacher eligibility test to be possessed by any candidate aspiring to be appointed as a teacher.

The next contention is that candidates who have not passed the Teacher Eligibility Test, have been appointed even after 23.8.2010. As already indicated by us, if the process had not begun by any advertisement as required under Rule 14, the petitioners cannot claim parity with such candidates. They will, therefore, have to undertake the Teacher Eligibility Test as, in fact, they have not entered the recruitment process or appointment as yet. The allegation that the State cannot adopt two yardsticks is not the issue inasmuch as the point to be resolved is as to whether the Teacher Eligibility Test is a necessary qualification or eligibility condition for the appointment of an Assistant Teacher in an elementary School after the Notification dated 23.8.2010 or not. If the State has proceeded to act contrary to rules, then the same cannot be a ground for claiming equality under Article 14 of the Constitution of India. The action of the State which is not in accordance with law or was an action under the transitory phase of the issuance of the rules and adoption of the Notification dated 23.8.2010 cannot enure any advantage to the interveners. The contention that rights had accrued in their favour prior to 23.8.2010, therefore, cannot be supported in law in the light of the observations made herein above.

The National Council for Teacher Education had issued the norms of minimum qualification on 31.3.2010 which was prior to the authorisation under the Notification dated 1.4.2010. Sri Srivastava, therefore, submits that if the Notification for fixing the minimum qualification had arrived one day earlier to the authorisation under the Act itself, the same has no legal force. The argument at first flush appears to be attractive but on a perusal of Section 22 of the General Clauses Act, 1901, the said argument has to be rejected outright. The authorisation had come on 1.4.2010 but the process of authorising the National Council for Teacher Education had commenced and it was issued one day earlier i.e. on 31.3.2010. The same was, however, published on 5.4.2010 i.e. after the authorisation had been issued by the Central Government. The norms laying down minimum qualifications, therefore, would come into effect from 5.4.2010 and not from 31.3.2010. It stands saved under Section 22 of the General Clauses Act as referred to herein above. This aspect is also supported by a couple of judgments of the Apex Court cited by the learned Counsel for the Central Government and the State reference whereof has been noticed in connection with Section 23-A of the U.P. General Clauses Act in the Division Bench judgment, State of U.P. Vs. Mahesh Narain, 2008 (71) ALR 926.

The next contention raised that the minimum qualifications fixed in addition to Rule 8 of the 1981 Rules do not in any way take away the impact of the existing qualification under Rule 8 and, therefore, such candidates, who possess the qualification as prescribed under Rule 8, cannot be excluded. Needless to mention that the Rules have already been amended and the Teacher Eligibility Test also forms part of the amended Rules under the 1981 Rules relied upon by the learned counsel. Even prior to the amendment of Rule 8, the contention that there is no prohibition of considering the candidates without the Teacher Eligibility Test is a misconceived argument. The rules, which had not been amended, were obviously not in accordance with the norms prescribed by the Central Government under the 2009 Act. Thus, the State Government cannot afford to ignore the said Rule or make appointment of candidates, who were not possessed of such qualifications. The argument that the word "minimum" does not mean only, is a misconceived argument inasmuch as, minimum means the least that has to be possessed. It does not mean that other qualifications cannot be prescribed or if prescribed cannot be read in addition to minimum qualification. The argument, therefore, raised by Sri Srivastava also does not come to his aid and in our opinion the Teacher Eligibility Test has to be passed by a candidate before he seeks appointment of Assistant Teacher after the promulgation of the Notification dated 23.8.2010.

Another argument advanced is that the State Government framed Rules under Section 38 of the 2009 Act on 27.7.2011 which indicates that there was a requirement to frame Rules in view of the provisions contained under Section 23 of the Act or else they would have been automatically covered. This argument is also misconceived inasmuch as the definition of the word "Institution" in the 2009 Act has been lost sight of by the learned counsel which includes all the Institutions as are indicated under the 2009 Act.

Sri Srivastava then contends that the judgment in the case of Prabhakar Singh causes discrimination between the candidates who have the special BTC training course and those who are having only BA and B.Ed. qualifications by exempting the latter class from appearing in the Teacher Eligibility Test. We have already indicated above that this part of the judgment in Prabhakar Singh's case deserves to be overruled as no such exemption has been granted by the provisions under the Notification dated 23.8.2010 as amended later on. In the aforesaid circumstances, this argument also deserves to be rejected.

One of the crucial arguments on the anvil of Article 14 of the Constitution that has been advanced is that the judgment under reference creates two classes of Teachers and the State Government has also discriminated one category of candidates namely those who were entitled to be appointed even prior to that. This argument has been advanced on the strength of the admitted position that candidates without having passed the Teacher Eligibility Test appointed even after 23.8.2010 belong to the category of special BTC course of 2007 and 2008 and also compassionate appointees.

The response of the State Government is that some appointments have been cancelled but so far as those teachers who have already been appointed and have been working even though they have not passed the Teacher Eligibility Test, their chapter should be treated as closed. Sri C.B. Yadav, learned Addl. Advocate General, has categorically stated this on instructions from the State Government. Thus, there exist a certain class of Teachers, who have been appointed after 23.8.2010 and do not possess the Teacher Eligibility Test qualification. They have also been appointed under the old prevalent practice of not facing any fresh selection after advertisement under Rule 14 and have been appointed immediately after training. They were appointed against the vacancies which were far above than the available number of candidates and, therefore, their appointment was almost a foregone conclusion.

Since this issue has been advanced time and again and has been canvassed by both the sides, we may put on record that the issue of law as referred has been categorically laid down by us and the appointments have to be made only in accordance with the aforesaid position of law. We do not wish to add anything further leaving the question raised above open to be debated and decided in appropriate cases as this is not a point of reference.

The questions that have been therefore framed by us are answered as follows:-

1. The teacher eligibility test is an essential qualification that has to be possessed by every candidate who seeks appointment as a teacher of elementary education in Classes 1 to 5 as per the notification dated 23.8.2010 which notification is within the powers of the NCTE under Section 23(1) of the 2009 Act.

2. Clause 3(a) of the notification dated 23.8.2010 is an integral part of the notification and cannot be read in isolation so as to exempt such candidates who are described in the said clause to be possessed of qualifications from the teacher eligibility test.

3. We approve of the judgment of the division bench in Prabhakar Singh's case to the extent of laying down the interpretation of the commencement of recruitment process under Clause 5 of the notification dated 23.8.2010 but we disapprove and overrule the ratio of the said decision in relation to grant of exemption and relaxation from teacher eligibility test to the candidates referred to in Clause 3 (a) of the notification dated 23.8.2010, and consequently, hold that the teacher eligibility test is compulsory for all candidates referred to in Clause 1 and Clause 3 (a).

Let the judgement be accordingly placed before the respective benches for appropriate orders.

Order Date: 31.05.2013
Irshad

2 comments:

AnonymousNovember 8, 2017 at 1:57 AM
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EngvartaFebruary 7, 2019 at 11:04 PM
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Thursday, March 27, 2014

Copy of PIL in UP language Teacher's Eligibility Test

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