WP(C) 3254/2006 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE B K SHARMA J U D G M E N T Ranjan Gogoi, J. 1. Notwithstanding the difference in form the substance of the challenge in this group of writ petitions is with regard to the validity of the Assam Elemen tary Education (Provincialisation) (Amendment) Rules, 2005 insofar as the said R ules have contemplated grant of preference to trained teachers in the matter of appointment under the provisions of the Rules. An advertisement dated 2.12.2005 inviting applications for filling up over 5000 posts of teachers in the Lower Pr imary Schools of the State which has been issued in accordance with the provisio ns of the Amendment Rules, 2005 is another aspect of the challenge made in this group of writ petitions. 2. The relevant facts for the purpose of the present adjudication may brief ly be noticed at this stage. The National Council of Teacher Education (NCTE) wa s established in the year 1983 as an advisory body to advise the Central and Sta te Governments on all matters pertaining to teacher education. The advisory role assigned to the Council not having produced the desired results, in the year 19 93 the National Council for Teacher Education Act was enacted by the Union Parli ament giving statutory recognition to the National Council for Teacher Education and assigning statutory duties to the said body. The aforesaid Act had been ena cted to provide for the establishment of a national council for teacher educati on with a view to achieving planned and coordinated development of the teacher e ducation system throughout the country, regulation and proper maintenance of nor ms and standards in the teacher education system and for matters connected there with. 3. Section 12 of the Act deals with the functions of the Council. In so far as the present cases are concerned the provisions contained in Section 12(d) wi ll be required to be noticed. Section 12(d) of the Act is in the following terms : 12. Functions of the Council.- 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 purpose of performing its functions under this Act , the Council may - & & &. &. (d) lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognized institutions; 4. Section 32 of the Act confers on the Council power to frame Regulations. Insofar as the present case is concerned, the provisions contained in Section 3 2(2)(d)(i) which is extracted below will be relevant. 32.(2)In particular and without prejudice to the generality of the foregoing p ower, such regulations may provide for all or any of the following matters, name ly :- &. &. &. &. (d) the norms, guidelines and standards in respect of-- (i) the minimum qualifications for a person to be employed as a teacher unde r clause (d) of Section 12; 5. Under Section 33 of the Act the Regulations framed is required to be lai d before each House of Parliament and it is only upon due approval of such Regul ations or upon modifications as may be made by the Parliament that the Regulatio ns will take effect. 6. The Council in exercise of powers under Section 32(2)(d)(i) has framed a set of Regulations i.e. National Council for Teacher Education (Determination o f Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 20 01. In the schedule to the aforesaid Regulations the minimum academic and profes sional qualifications for recruitment of teachers at different levels have been stipulated. Insofar as the elementary/primary schools are concerned, the qualifi cations prescribed by the schedule are as follows : (i) Senior Secondary School Certificate. (ii) Diploma of certificate in basic teachers training of a duration of not l ess than two years, OR Bachelor of Elementary Education (B.E.Ed) The Regulations framed by the Council further contemplate that the existing Recr uitment Rules would be modified within a period of three years so as to bring su ch Rules in conformity with the qualifications prescribed by the Schedule to the Regulations. 7. In the State of Assam, in March 1999, a pre-service teacher’s training c ourse of two years duration leading to award of diploma (hereinafter referred to as the pre-service teachers training course) was introduced and admissions to t he said course was regulated by an advertisement published in the newspapers on 14.4.1999. In the said advertisement it was specifically mentioned that the pre- service training course leading to award of diploma in education for which appli cations were invited has been designed to secure improvement of the professional skill of the persons to be recruited as teachers in elementary schools against the vacancies that will occur in the near future. Most of the petitioners in the present group of cases had applied pursuant to the said notice/advertisement an d have completed the two years course leading to the award of diploma. In fact, as the materials placed before the Court would indicate, the training course com menced in the year 2000 and after completion of two batches in which about 900 p ersons had qualified and were awarded the diploma, the State Government disconti nued the said training course with effect from the year 2003. 8. The aforesaid developments had led to filing of two writ petitions i.e. WP(C) No.2454/2003 and 2555/2003 before this Court which were disposed of by ord er dated 18.2.2004. By the said order, this Court, taking note of the stand take n by the State Government in the affidavit filed in the cases, directed suitable amendment of the Recruitment Rules as may be deemed necessary by the State. 9. Thereafter two letters, which are available on record, dated 2nd of Apri l, 2004 and 7th of June, 2004 were addressed by the authorities of the National Council for Teacher Education to the Secretary to the Govt. of Assam, Elementary Education Department, informing the said authority about the requirements of ac ademic and professional qualifications for recruitment as teachers in lower prim ary schools of the State and suggesting that appropriate amendment in the Recrui tment Rules should be effected by the State Government. 10. Thereafter the Assam Elementary Education (Provincialisation) Rules, 199 7 were amended with effect from 10.11.2005. By the aforesaid Amendment Rules ins tead of making the requirement of a diploma in teachers training mandatory as st ipulated by the Regulations framed by the Council, it was provided that preferen ce to trained candidates will be given. Schedule-I to the aforesaid Amendment Ru les contemplate that such preference will be in the form of 10 additional marks to trained teachers in the selection process for recruitment of teachers. After the aforesaid amendment to the Rules were effected the advertisement dated 2.12. 2005 has been issued contemplating grant of preference to trained teachers. Aggr ieved and contending that the aforesaid amendment of the Rules and the advertise ment issued is not in conformity with the statutory Regulations framed by the Co uncil this group of writ petitions have been filed seeking appropriate interfere nce of the Court and for grant of consequential relief. 11. The State Government has not filed any affidavit in any of the cases und er consideration. At the hearing also, though the State has been represented by one of the learned Standing Counsels of the Education Department, no instruction s have been conveyed to the learned Standing Counsel so as to enable the learned counsel to apprise the court the precise stand of the State Government in the m atter. In such circumstances, the Court has been left with no option but to proc eed with the adjudication of the present writ petitions on the basis of the mate rials available on record. 12. The facts recited above make it abundantly clear that under the Regulati ons framed by the Council under Section 32 of the Act, a candidate, in order to be eligible for recruitment as a teacher in a lower primary school, has to pass the Higher Secondary examination and such candidate must also hold a diploma in teachers training which course has to be of two years duration or a candidate mu st be a B.E.ED. Under the Rules as amended while the first requirement spelt out by the Regulations is met with the added requirement that a candidate must secu re at least 45% marks in the Higher Secondary examination, the second requiremen t contemplated by the Regulations has been departed from and instead making the requirement of diploma in teacher training a condition of eligibility the Amendm ent Rules contemplate grant of preference by award of 10 extra marks to such a c andidate. The short question, therefore, that confronts the Court in the above f acts is whether the Amendment Rules will have to be understood to be ultra vires or contrary to the provisions of the National Council for Teachers Education Ac t, 1993. 13. Section 12(d) of the Act contemplates laying down of guidelines in respe ct of minimum qualifications for a person to be recruited as a teacher as one of the functions entrusted to the Council. It will be significant to notice in thi s regard that the legislature while enacting the Act of 1993 had clearly laid do wn that what is to be prescribed/laid down by the Council are guidelines in resp ect of minimum qualifications. The use of the word guidelines appearing in Sec tion 12(d) of the Act will be of some significance and therefore must be unders tood in its true perspective. 14. Pursuant to the provisions contained in Section 12(d) of the Act and in exercise of the powers conferred by Section 32(2)(d)(i) thereof a set of Regulat ions, as already noticed, have been framed by the Council. Under Section 33 of t he Act such Regulations are required to be approved by each House of Parliament. As it is the common case of the parties before the Court that the said Regulati ons are in force the Court will understand that the aforesaid Regulations framed by the Council has the approval of each House of Parliament as contemplated by Section 33. In such a situation even though the power of the Council is to lay d own guidelines, as such guidelines have been laid down in exercise of the statut ory power by framing a set of Regulations and the same has been subsequently app roved by each House of Parliament the Court has to understand that adherence to the said guidelines or at least substantial compliance therewith would be requir ed. Departures from the laid down guidelines but at the same time meeting the re quirement of substantial compliance therewith can be justified only if there are sufficiently strong and compelling reasons dictated by public interest for the same. This is the manner in which the Court had thought it proper to understand the enforceability of the Regulations framed by the Council with regard to minim um qualifications for recruitment of teachers. 15. In the present group of cases, as already noticed, the State has neither filed an affidavit nor has the State taken any particular stand before the Cour t. No compelling reasons dictated by public interest have been disclosed by the State to enable the Court to understand that the provisions of the Amendment Rul es, though in departure from the Regulations framed by the Council, is dictated by acceptable reasons in public interest. Though in the course of the hearing th e learned Standing Counsel of the Department has pointed out that in the State o f Assam teachers in lower Primary Schools are required to undergo a Basic traini ng course after their appointment and till completion of the said course such te achers are not put on the regular scale of pay, the said facts cannot constitute adherence or even substantial compliance with the provisions of the Regulations in as much as the Regulations prescribe completion of the teachers training cou rse as a positive condition of eligibility which is conspicuously absent in the Amendment Rules. The failure of the State to show any compelling or supervening circumstances justifying the said departure from the Regulations has, therefore, to be understood by the Court to be due to the absence of any such reasons. In such a situation, the requirement of adherence to the statutory Regulations fram ed by the Council cannot be left to be determined at the discretion of the autho rities of the State Government of Assam. That apart, the Regulations famed by th e Council has the effect of enhancing the quality of education at the primary le vel and in the absence of any compelling reason to justify a departure therefrom , the Court would lean in favour of an interpretation that would advance the cau se of quality education in the State. 16. Consequently and in the light of the foregoing discussions the provision s of the Assam Elementary Education (Provincialisation) (Amendment) Rules, 2005 insofar as giving of preference to trained teachers is concerned is held to be i nvalid being contrary to the provisions of the National Council for Teachers Edu cation Act, 1993 and the Regulations framed thereunder. As a corollary thereto, it will now be incumbent on the part of the State Government to revive the train ing institutes for imparting pre-service teachers training of two years duration leading to award of diploma. 16. This will bring the Court to a consideration of the directions that shou ld be issued with regard to the advertisement dated 2.1.2005. The said advertise ment was issued at the time and stage when the Assam Elementary Education (Provi ncialisation) (Amendment) Rules, 2005 were in force. The Court is informed that selections pursuant to the advertisement has been completed in the meantime. The Amendment Rules have been adjudged as illegal and ultra vires the Act of 1993 b y the present order. In such circumstances, the Court is of the view that the re cruitment contemplated by the advertisement dated 2.12.2005, if the State is inc lined to do so, may be completed in the terms and conditions of the advertisemen t issued but henceforth and in the future recruitment of teachers in the lower p rimary schools of the State will have to conform to the requirement of academic and professional qualifications spelt out by the National Council for Teacher Ed ucation (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001. 17. All the writ petitions consequently shall stand disposed of in terms of the above.