IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 17449 of 2008 & connected cases Date of Decision: November 29, 2010 Vijay Kumar and others …Petitioners Versus State of Haryana and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE A.N. JINDAL Present: Mr. Gopal Krishan Chatrath, Senior Advocate, with Ms. Alka Chatrath, Advocate, and Mr. G.P. Singh, Advocate, for the petitioners. Mr. Rameshwar Malik, Addl. AG, Haryana, With Ms. Mamta Singhal Talwar, Asstt. AG, Haryana, Mr. Namit Kumar, Advocate, Mr. R.K. Malik, Senior Advocate, with Mr. Kohal Dev Sharma, Advocate, Mr. Jagbir Malik, Advocate, for the respondents. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. This order shall dispose of a bunch of 10 petitions* involving common questions of law and facts. However, the facts have been referred from CWP No. 17449 of 2008. 2. The Guest Teachers working in the Haryana Education Department have filed the instant petition under Article 226 of the Constitution challenging CWP No. 17449 of 2008 & connected petitions amendments made in the statutory rules vide impugned notifications dated 24.7.2008 (Annexures P-1 to P-4). Further challenge has been made to the issuance of Prospectus for holding State Teachers’ Eligibility Test (for brevity, ‘the Eligibility Test’) as also advertisement dated 13.8.2009 (P-8), prescribing passing of the Eligibility Test as an essential condition for recruitment of teachers of all categories. Still further a prayer has been made for directing the official respondents to consider the petitioners for appointment against the posts which have been advertised vide advertisement dated 13.8.2009 without imposing the condition of having passed the Eligibility Test. 3. At the outset the contour of factual matrix may be noticed. In the Department of Education, Haryana, there are different set of Rules regarding recruitment of Teachers to Group-B and Group-C posts. These Rules are known as the Haryana Primary Education (Group-C) District Cadre Service Rules, 1994 (for brevity, ‘the Service Rules of 1994’), which were amended by the Haryana Primary Education (Group-C) District Cadre Service Rules, 2003 (for brevity, ‘the 2003 Rules’). These Rules govern the conditions of service of Primary Teachers such as Head Teacher and Junior Basic Trained Teacher. The conditions and qualifications concerning recruitment of Middle School Headmaster and Masters in various subjects such as Punjabi, Hindi, Sanskrit, Physical Training Instructors etc. are provided by the Haryana State Education School Cadre (Group-C) Service Rules, 1998 (for brevity, ‘the Service Rules of 1998’). The Haryana State Education (School and Inspection Cadre) (Group B) Service Rules, 1998 (for brevity, ‘School and Inspection Cadre Rules’) also prescribe certain qualifications concerning appointment and conditions of service of persons recruited to the Group-B Service of Education Department such as Assistant Director (Academic)/Deputy District Education Officer/Sub 2 CWP No. 17449 of 2008 & connected petitions Divisional Education Officer, Principal/Senior Specialist, Block Education Officer and Headmaster of High School/Junior Specialist/ Programme Assistant. Other than this, the Rules called the Haryana State Education Lecturer (School Cadre) Service Rules, 1998 (for brevity, ‘the School Lecturer Rules’) relate to the qualifications and conditions of service of the School Lecturers. 4. The petitioners have claimed that they possess adequate and various qualifications viz. 10+2, JBT/D.Ed./ETT or B.A./B.Sc. and B.Ed. or M.A./M.Sc., M.Ed. etc. with more than 50% marks and fulfill the qualifications prescribed under the aforementioned statutory Rules for being appointed as Teachers. In para 2 of the petition a detailed chart has been prepared showing the educational qualifications possessed by the petitioners and particulars of the posts for which they are eligible. 5. The averments made in the petition show that more than 15000 vacancies of teachers exist in the State of Haryana. However, the teachers have not been appointed in full strength. In the year 2001, the State of Haryana transferred the primary schools to the Zila Parishads vide notification dated 30.3.2001, which was subsequently rescinded by another notification dated 10.8.2005. The State of Haryana also decided that the teachers appointed in the schools during the interregnum period by the Zila Parishads would be required to qualify a test. Their qualification for appointment was raised from 10+2 to B.A. Thus, it is alleged that an attempt was made to decrease the number of teachers recruited by the Zila Parishads. 6. In 2005, with a view to cope up with the scarcity of teachers, the State of Haryana decided to make appointments of Guest Teachers. On 17.12.2005, an advertisement was issued for appointment of Guest Teachers. 3 CWP No. 17449 of 2008 & connected petitions The power to make appointments of Guest Teachers was delegated to the District Education Officers, Block Education Officers and the Principals/Headmasters of the concerned institutions. A large number of Guest Teachers, who were trained and qualified, were employed. The petitioners were also appointed as Guest Teachers in December 2005. 7. The Board of School Education, Haryana, Bhiwani, issued a prospectus on the basis of the decision of the State of Haryana to introduce an ‘eligibility test’ for school teachers etc. The trained and qualified teachers filed CWP No. 12599 of 2008 (Vijay Kumar and others v. State of Haryana and others) in this Court challenging the said prospectus and the action of the State of Haryana stipulating passing of Eligibility Test as an essential condition for recruitment to all categories of posts of teachers. It is claimed by the petitioners that after issuance of notice of motion by a Division Bench of this Court on 22.7.2008, the State of Haryana amended the statutory Rules by issuing separate notifications dated 24.7.2008 (Annexures P-1 to P-4). In Appendix ‘B’ of all the statutory Rules viz. the School and Inspection Rules, the School Lecturer Rules, the Service Rules of 1994 and the Service Rules of 1998, the qualification of “Certificate of having qualified School Teacher’s Eligibility Test (STET)” has been inserted (Annexures P-1 to P-4). Another notification dated 27.7.2008 has also been issued to amend para 2 of the earlier notification dated 17.4.2008, which is to the effect that the pass percentage for candidates belonging to General categories shall be 50% and for Scheduled Caste candidates 45%, for consideration for recruitment as teachers, by Haryana Staff Selection Commission, for Government Schools in Haryana. It has further been stipulated that the number of chances to appear and pass the test which, an eligible person can avail would be restricted to three in case of General 4 CWP No. 17449 of 2008 & connected petitions Category candidates and four in case of Reserved Category candidates (Annexure P-5). On 25.7.2008, when the aforementioned writ petition came up for consideration, the Division Bench passed the following order:- “ This writ petition has been filed with a prayer to quash action of respondent no. 5 to issue a prospectus to hold the State Teachers Eligibility Test (STET). It is contention of counsel for the petitioners that the above said test has been fixed without any provision existing for the same in the service rules, regulating the appointment to the posts of Masters, Teachers and Lecturers in Schools in the State of Haryana. Notice of motion was issued in this case on July 22, 2008. In response to notice, short reply has been filed, wherein it has been stated that intention to amend the service rules was expressed by the State Government by issuing notification dated April 17, 2008. Thereafter, the above said prospectus was issued. Admittedly, amendment in the Rules have been effected and notified only on July 24, 2008. it is contention of counsel for the petitioners that once there was no provision in the rules to hold any eligibility test, it was not open for the respondents to issue any prospectus to conduct any test. After hearing counsel for the parties, tentatively we were satisfied with the argument raised by counsel for the petitioners. We were going to restrain the respondents from conducting the testing question till the next date of hearing. At this stage, Advocate General Haryana, assisted by Shri Sanjeev Bansal, 5 CWP No. 17449 of 2008 & connected petitions Advocate, on getting instructions from Mr. Anurag Rastogi, Director, Secondary Education, Haryana, very fairly states that the respondents withdrew the prospectus in question, they will issue fresh prospectus, if need be. It is further stated that in case Government decides to hold the test, applications moved by all the candidates, in respect to the earlier prospectus issued, shall be considered valid and they need not apply afresh. Petitioners, if so advised, may apply again, in that event, fee already paid by them shall be adjusted. In view of the statement made, this writ petition has become infructuous and the same is disposed of accordingly. Petitioners, if so advised, may lay challenge to the notification now issued by the Government, effecting amendment in the service rules.” 8. Again a prospectus has been issued by the Board of School Education, Haryana, Bhiwani, in reference to notifications dated 17.4.2008 and 24.7.2008 issued by the State of Haryana. In the prospectus it has been specifically mentioned that passing of the Eligibility Test would be an essential condition for recruitment of all categories of teachers. The prospectus also contains the scheme of test, syllabus for Eligibility Test of different categories of teachers, schedule, and eligibility criteria etc. The last date of receipt of applications for Eligibility Tests was fixed as 19.9.2008. The Eligibility Tests for different category of teachers viz. Heads, Elementary Teachers, Lecturers and Masters/Mistresses were scheduled to be held on different dates between 4.10.2008 to 12.10.2008 (Annexure P-6). 9. It is also pertinent to mention here that the State of Haryana has been advertising various posts of teachers from time to time. According to the 6 CWP No. 17449 of 2008 & connected petitions petitioners one such advertisement was issued on 20.7.2006 (Annexure P-7). Some of the petitioners and other similarly situated persons were eligible for respective posts as per the qualifications prescribed in the said advertisement. However, the appointments could not be made because of litigation which had been going on in Hon’ble the High Court as also Hon’ble the Supreme Court. However, with the advent of passing of Eligibility Test as an essential condition, such persons including the petitioners have been rendered ineligible. 10. It is in the backdrop of above factual position that the petitioners filed CWP No. 17449 of 2008. However, after issuance of notice of motion and filing of reply by the respondents, in pursuance to a requisition sent by the Education Department, Haryana, the Haryana Staff Selection Commission (for brevity, ‘the Commission’) has issued a fresh advertisement No. 4/2009, dated 13.8.2009, inviting applications for filling up 9647 posts of JBT Teachers, 1276 posts of Science Masters, 237 posts of DPE Masters, 1037 posts of Math Masters, 372 posts of S.S. Masters, 20 posts of Music Masters and 4 posts of Home Science Mistresses. The last date of submission of application forms was 14.9.2009. In the said advertisement passing of Eligibility Test has been mentioned as an essential qualification for appointment to the said posts (Annexure P-8). In order to lay challenge to the said advertisement, the petitioners amended the writ petition. 11. The primary grievance of the petitioners is that the action of the official respondents in prescribing the condition of passing of Eligibility Test is in contravention of the qualifications prescribed under the Regulations framed by the National Council for Teachers Education (for brevity, ‘NCTE’), which has been constituted and established under the National Council for Teachers Education Act, 1993 (for brevity, ‘the 1993 Act’). Referring to Section 12 of 7 CWP No. 17449 of 2008 & connected petitions the 1993 Act it has been emphasised that NCTE has been established for ensuring planned and coordinated development of teacher education and for determination and maintenance of standards for teacher education. Section 12 further contemplates functions of the NCTE and clothed it with the power to lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognised institutions. NCTE also lays down norms for any specified category of courses or trainings in teacher education, including the minimum eligibility criteria for admission thereof and the method of selection of candidates, duration of the course, course contents and mode of curriculum. It has also the power to prescribe minimum qualifications for a person to be employed as a teacher under clause (d) of Section 12 of the Act. According to the petitioners, the NCTE is like an Apex Body, inasmuch as, without its recognition in terms of Section 14 of the 1993 Act, no institution could even start any new course or training in teacher’s education. 12. It has further been highlighted that under clause (d)(i) of Sub- section (2) of Section 32 read with Section 12(d) of the 1993 Act, the NCTE has framed Regulations, namely, the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 (for brevity, ‘the 2001 Regulations’), which came into operation w.e.f. 4.9.2001. The 2001 Regulations are applicable for recruitment of teachers in all formal schools established, run or aided or recognized by the Central or State Governments and other authorities for imparting education at elementary (primary and upper primary/middle school), secondary and senior secondary stages. Regulation 3 provides for qualifications for recruitment of teachers in educational institutions as given in First and 8 CWP No. 17449 of 2008 & connected petitions Second Schedule appended to the Regulations. It has further been stated that the qualifications prescribed in the First Schedule apply for recruitment of teachers for teaching school subjects, whereas the qualifications prescribed in the Second Schedule apply for recruitment of teachers for Physical Education. However, for recruitment of teachers for co-curricular activities such as work experience, art education etc., existing qualifications as prescribed by the concerned Government would apply. For promotion of teachers from one level to the next level of teaching, minimum qualifications as given in the Schedules for the concerned level would be required. 13. Based upon the qualifications prescribed in the 2001 Regulations, it has been asserted that for appointment of Elementary Teachers the requisite qualification is Senior Secondary School Certificate or Intermediate or its equivalent and Diploma or Certificate in Basic Teachers’ Training of a duration of not less than two years or Bachelor of Elementary Education (B.EI.Ed.). For appointment to the post of Upper Primary Teacher (Middle School Section) the qualification prescribed is Senior Secondary Certificate or Intermediate or its equivalent and Diploma or Certificate in Elementary Teachers Training of a duration of not less than two years or Bachelor Elementary Education (B.EI.Ed.). For appointment to the post of Secondary/High School Teacher, the qualification is Graduate with Bachelor of Education (B.Ed.) or its equivalent or Four Years integrated B.Sc., B.Ed. or an equivalent course. Similarly, for appointment to Senior Secondary/Intermediate Teacher, the qualification is Master’s Degree in the relevant subject with Bachelor of Education (B.Ed.) or its equivalent or Two Years’ integrated M.Sc. B.Ed. course or an equivalent. For recruitment of teachers of Physical Education Institutions, for Elementary Teacher, the qualification is Senior Secondary School Certificate or 9 CWP No. 17449 of 2008 & connected petitions Intermediate or its equivalent and Certificate in Physical Education (C.P.Ed.) of a duration of not less than two years or its equivalent. For appointment in Secondary/High School, the qualification is Graduate with Bachelor of Physical Education (B.P.Ed.) or its equivalent and for appointment in Senior Secondary (Physical Education as an elective subject), the qualification is M.P.E./M.P.Ed. (2 years duration). 14. The 2001 Regulations were amended vide National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) (Amendment) Regulations, 2003 (for brevity, ‘the 2003 Regulations’) and the following minimum academic and professional qualifications have been contemplated in the Schedule to these Regulations:- “Qualifications for recruitment of teachers in educational institutions mentioned in Section 2 of the Regulations. Leve l Minimum Academic and Professional Qualifications i. Pre-School/ Nursery (For children in the age group of 4-6 years) i. Secondary School (Class Ten) Certificate or its equivalent; and ii Diploma/Certificate in Pre- School teacher education programme of a duration of not less than one year. ii. Pre-School/ Nursery followed by first two years in a formal school (for children in the age group of 4-6 and 6-8 years) i. Secondary School (Class Twelve) Certificate or Intermediate or its equivalent with at least 45% marks; and ii Diploma/Certificate in Nursery teacher education programme of duration of not less than two years. iii. Elementary a. Primary i. Senior Secondary School Certificate or Intermediate or its equivalent; and 10 CWP No. 17449 of 2008 & connected petitions ii . Diploma or Certificate in basic teachers’ training or a duration of not less than two years. OR Bachelor of Elementary Education (B.EI.Ed.) b. Upper Primary (Middle School Section) i. Senior Secondary Certificate or Intermediate or its equivalent; and ii . Diploma or Certificate in elementary teachers training of a duration of not less than two years. OR Bachelor of Elementary Education (B.EI.Ed.) OR Graduate with Bachelor of Education (B.Ed.) or its equivalent. iv. Secondary/High School Graduate with Bachelor of Education (B.Ed.) or its equivalent OR Four years’ integrated B.Sc., B.Ed. or an equivalent course. v. Senior Secondary/ PUC / Intermediate Master’s Degree in the relevant subject with Bachelor of Education (B.Ed.) or its equivalent. OR Two Years’ integrated M.Sc. Ed. course or an equivalent course.” 15. Obviously, the NCTE has not prescribed passing of Eligibility Test for being appointed as a teacher in Primary, Secondary or Senior Secondary School category. It has been claimed that due to amendment made in the Statutory Rules by impugned notifications dated 24.7.2008 (P-1 to P-4), prescribing for Eligibility Test, about 1.50 lac candidates have been rendered as ineligible for being considered and appointed as teachers, who are otherwise 11 CWP No. 17449 of 2008 & connected petitions eligible as per the Regulations framed by the NCTE. Besides this, the petitioners have also referred to the provisions of the Constitution and various judgments of Hon’ble the Supreme Court, which shall be dealt with by us in the succeeding paras. 16. In the written statement filed on behalf of official respondent Nos. 1 to 5 preliminary submissions have been made asserting that every year on an average there is a requirement for recruitment of 5000 to 8000 teachers for the schools run by the State of Haryana. There are lacs of degree holders who are passing out from various institutions all over the country with the qualifications of J.B.T. and B.Ed. The quality of degree holders passing out from such institutions differs drastically. It has been averred that passing of the Eligibility Test is aimed at recruitment of only good quality teachers. It has also been pointed out that so far three Eligibility Tests have been held in July 2008, July 2009 and December 2009 and nearly 50,000/- candidates have passed such test. It has been highlighted that a similar controversy cropped up before Hon’ble the Supreme Court in the case of Basic Education Board U.P. v. Upendra Rai, (2008) 3 SCC 432 and their Lordships’ have upheld the right of the State Government in determining the eligibility condition for recruitment of teachers for various educational institutions after categorically examining the jurisdiction of NCTE on the subject. It has been submitted that the 2001 Regulations as amended by 2003 Regulations, framed by the NCTE only prescribe minimum academic and professional qualifications for teachers to be recruited in different educational institutions. Those Regulations do not preclude the right of the State Government to prescribe additional qualifications of eligibility criteria for selecting good quality teachers out of lacs of applicants 12 CWP No. 17449 of 2008 & connected petitions who might come forward to seek employment. Moreover, the basic qualifications prescribed by the NCTE have not been changed or altered. It has, thus, been emphasised that the basic objective of prescribing passing of Eligibility Test as an essential condition is only to select best talent available. It has been denied that any candidate has been debarred rather the State Government is striving to recruit better quality teachers for Government Schools of the State of Haryana. The State of Haryana is making every effort to fill up vacant posts by recruiting best teachers to meet out the exigency. It has also been pointed out that against the available 17,000 vacancies of teachers, nearly 50,000 STET pass candidates are available for which requisitions are pending with the Haryana Public Service Commission/Haryana Staff Selection Commission. 17. In the replication filed by the petitioners again the provisions of the 2001 Regulations have been reiterated and it has been submitted that once the NCTE has prescribed the minimum qualifications for a person to be appointed as a teacher at various levels of School education, a person who possess such qualification would be eligible to be employed as a teacher and nobody has the power to declare such a person ineligible. It has been emphasised that by virtue of the 1993 Act there is uniform training in Teachers’ education, therefore, there is no need for prescribing passing of eligibility test. All the persons who possess the minimum required qualifications are eligible to compete. Reference has also been made to Regulation 4 of the 2001 Regulations, which contemplates that all the States should bring amendment in their recruitment rules in terms of the 2001 Regulations. Regulation 4 of the 2001 Regulations reads thus: Regulation-4 of the 2001 Regulations. 13 CWP No. 17449 of 2008 & connected petitions “Existing Recruitment Rules may be modified within a period of 3 years so as to bring them in conformity with the qualifications prescribed in Schedule. In the meanwhile, teachers appointed as per existing Recruitment qualifications, subsequent to the issue of these Regulations will be required to acquire the qualifications as prescribed in the Schedule.” 18. It has further been controverted by the petitioners that the judgment of Hon’ble the Supreme Court in Upendra Rai’s case (supra) is not applicable to the facts of the present case. According to them the Regulations framed by the NCTE were never brought to the notice of Hon’ble the Supreme Court in the said case. In para 23 of the replication it has been highlighted on the basis of information received under the Right to Information Act, 2005, that only 5% candidates have been able to pass the Eligibility Test on their own and the remaining were granted grace marks enabling them to pass the Eligibility Test. 19. Another issue which has been raised in the replication filed by the petitioners is that the guest teachers were earlier granted relaxation from qualifying the Eligibility Test. However, the said relaxation has been disallowed by this Court rendering 15000 working teachers ineligible to compete for the posts they had applied for. It has been apprehended that such guest teachers would lose their jobs when selection of teachers on regular basis would be completed. 20. The petitioners have also filed additional information by filing C.M. No. 8139 of 2010, placing on record the statistics with regard to STET Examinations and vacancy position of teachers as on 3.3.2010 (Annexures P-10 & P-11). They have also placed on record a copy of the Gazette notification dated 27.8.2009, issued by the Ministry of Law and Justice, Government of 14 CWP No. 17449 of 2008 & connected petitions India, whereby the Right of Children to Free and Compulsory Education Act, 2009 (for brevity, ‘the 2009 Act’) has been notified. It is pertinent to mention that the 2009 Act has been legislated with an object that the children of the age group of 6 to 14 years get free and compulsory education and it came into force w.e.f. 1.4.2010. Section 23 of the 2009 Act prescribes the qualification for appointment and terms and conditions of service of teachers and reads thus:- “23. Qualifications for appointment and terms and conditions of service of teachers. – (1) Any