IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12319 of 2011 1. Nuzhat Iqbal D/O Md. Iqbal R/O Vill.- Makhdumchak, Via- Paliganj, Post-Janipur, P.S.- Phulwarisharif, Distt.- Patna 2. Farhat Parveen D/O Late Abdul Quddus Khan C/O Mubarak Ismail Khan, Near Zakir Hussain School, Sultanganj, Patna, P.S.- Sultanganj, Patna 3. Amrendra Kumar Sinha S/O Shri Ram Chandra Prasad Sinha R/O C/O Arun Kumar Arunakar, Ram Sahay Lane, Mahendru Patna-6, P.S.-Sultanganj, Distt.-Patna. 4. Md. Waliullah S/O Md. Dawood Nadeem R/O C/O Late Aslamul Haque, At-Ababakarpur, P.S.-Goraul (Chehrakala- O.P.), Distt.-Vaishali. 5. Ravindra Kumar Sharma S/O Shri Yugal Kishore Sharma R/O Vill.-Barwa, P.S.-Jamhor, Distt.-Aurangabad. 6. Md. Moinuddin Ansari S/O Md. Abdullatib Ansari R/O Vil.-Pihra, P.S.-Ganwa, Distt.-Giridih (Jharkhand). 7. Ram Sumer Singh S/O Subrai Singh Vill.-Chhakanbigha, P.S.-Barun, Distt.-Aurangabad. 8. Taj Shamima Suleman D/O Late Md. Shlaiman C/O Haroon Rashid, Id-Gaah-Lane, Bhikhanpura, Barepura, Bhagalpur, P.S.-Nathnagar, Distt.-Darbhanga---------------------petitioners Versus 1. The National Council for Teacher Education, Hans Bhawan (Wing-II) 1, Bahadur Shah Zafar Marg, New Delhi-110002 through Member Secretary. 2. The Member Secretary, National Council for Teacher Education, Hans Bhawan (Wing-II) 1, Bahadur Shah Zafar Marg, New Delhi-110002 3. The Secretary, Ministry of Law and Justice (Legislative Deptt.), Govt. of India, New Delhi. 4. The Secretary, Ministry of Human Resources Development Deptt., Govt. of India, New Delhi. 5. The Director, Deptt. of School Education and Literacy, Ministry of Human Resources Development Deptt., Govt. of India, New Delhi. 6. The Chief Secretary, Govt. of Bihar, Old Secretariat, Patna. 7. The Principal Secretary, Human Resources Development Department, Govt. of Bihar (Bikas Bhawan), New Secretariat, Patna. 8. The State Council of Education Research and Training (SCERT), Govt. of Bihar, Mahendru, Patna-800006 through its Director. 9. The Director (Incharge), State Council of Education 2 Research and Training (SCERT), Govt. of Bihar, Mahendru, Patna-800006. 10. The Bihar School Examination Board, Sinha Library Road, Patna-800017 through its Secretary----------respondents ---------------------------------- For the petitioners :Mr.Rajendra Pd.Singh, Sr.Advoate Mr.Niranjan Kumar, Advocate For the State :Mr.Lalit Kishore, AAG-1 M/S Dhurandhar Choudhary,Girijesh Kumar, Advocates For the Union of India & NCTE:Mr.S.N.Pathak, Sr.S.C.C.G For B.S.E.B. :Mr.S.S.Mishra, Advocate --------- 7 13.12.2011 I.A.No.8579 of 2011 Mr.Rajendra Prasad Singh, learned Sr. Counsel appearing for the petitioners along with Mr.Niranjan Kumar, Advocate On Record, submits that he is not pressing the interlocutory application in the present matter but seeks liberty to file a fresh writ petition for the reliefs sought to be added by way of amendment in the I.A. In view of the aforesaid submission, I.A.No.8579 of 2011 is dismissed as not pressed with liberty to the petitioners to file a writ petition with respect to the reliefs sought to be added by the I.A. Heard learned counsel for the petitioners and learned counsels for the respondents State of Bihar, Union of India, National Council for Teacher Education and State Council for Educational Research and Training and Bihar 3 School Examination Board. The writ application has been filed for quashing the press communiqué dated 20th May, 2011(Annexure-11) by which the untrained candidates have been allowed to participate in the Teacher Eligibility Test which is going to be held by the State Council of Educational Research and Training and the Bihar School Examination Board by the name of Bihar Elementary Teacher Eligibility Test, 2011 for appointment of teachers in Primary and Upper Primary level schools. Subsequently through an I.A. challenge has been made to the Notification dated 1.6.2011 (Annexure- 14) issued by the Department of School Education and Literacy, Ministry of Human Resources Development, Government of India by which relaxation has been granted by the Central Government in exercise of powers under Section 23(2) of the Right to Education Act permitting appointment of untrained candidates in the State of Bihar. The petitioners are trained teachers who aspire for jobs in the Upper Primary and Primary schools in the State of Bihar. It is the contention of learned counsel for the petitioners that after the Right of Children to Free and Compulsory Education Act, 2009 (in short „Act‟) has been 4 enforced it is not open to the respondent State to permit the appointment of any teacher in the schools of the State who do not have the qualification of training. Learned counsel submits that under Section 23(1) of the Act only such persons possessing such minimum qualifications as laid down by the academic authority of the Central Government, in this case National Council for Teacher Education (NCTE) shall be eligible for appointment as a teacher. It is urged that the NCTE has come out with a Notification dated 23.8.2010 under which the minimum qualifications for appointment as a teacher in Class 1 to VIII has been laid down. In the said Notification the requirement of having trained qualification is essential. The further requirement under the said Notification is that the candidates pass in the Teacher Eligibility Test (TET) to be conducted by the appropriate Government (in this case the State Government) in accordance with the guidelines by the NCTE for the purpose. Pursuant to the said Notification by another Notification dated 11.2.2011 NCTE has come out with the guidelines for conducting TET under the RTE Act. The said guidelines clearly provide that only such persons who possess the academic 5 and professional qualifications specified in the NCTE Notification dated 28.3.2010 shall be eligible for appearing in the TET. Further contention of learned counsel for the petitioners is that while Section 23(2) of the Act provides that where a State does not have adequate institutions for training of teachers or teachers possessing minimum qualifications are not available in sufficient numbers the Central Government may if it deems necessary relax the minimum qualifications for appointment as a teacher for a maximum period of five years but in the present matter the pre-conditions laid down under Section 23(2) of the Act do not exist and thus the relaxation granted by the Central Government through the impugned Notification dated 1.6.2011 is contrary to the provisions of the Act and is arbitrary, unreasonable and irrational. It is the contention of learned counsel that the State has adequate number of institutions for providing courses of training to the teachers and as many as 104 such institutions are shown running in the State on the website of NCTE with intake capacity of 10285 students. It is further contended that in addition to the above every year 6 more than 25,000 students of the State are obtaining teachers training qualification from the training institutions outside the State and at present about 3 lakh persons having teachers training qualification are available in the State which is much more than the available roster cleared vacancies of the teachers meant for elementary schools. It is thus urged by learned counsel that allowing untrained teachers to compete with trained teachers can only jeopardize the chances of the trained teachers in getting the job. Learned counsel also refers to the earlier decisions of this Court under which this Court and the Apex Court had directed the respondent State Government to appoint only trained teachers and not to allow untrained teachers in the appointment of teachers. In this regard learned counsel for the petitioner has assailed the figures regarding the number of trained candidates available in the State as stated in the counter affidavit of the State respondents and also the number of vacancies which may arise and which are proposed to be filled up in the course of one year and submits that all those figures are inflated figures only for the purpose of obtaining the relaxation and it would not be possible for 7 the State Government to make appointment of as many as one lakh teachers in a year and the manner in which appointments are made there would be sufficient number of trained candidates available from year to year for the purpose of appointment as school teachers. In support of his stand learned counsel cites the case of Nand Kishore Ojha & Ors. Vs. The State of Bihar & Ors. :2004(3) PLJR 782. It is also submitted by learned Sr.Counsel for the petitioners that the TET is in substance a scrutiny test for appointment and can only be undertaken after Rules are framed under Section 38 of the Act read with sub-section (3) of Section 23 as the latter sub-section provides that the salary and allowances payable to the teachers and terms and conditions of service of teachers shall be such as may be prescribed. Section 2(l) defines „prescribed‟ to mean prescribed by rules under the Act which rules under Section 38 are to be made by the appropriate Government which again has been defined under Section 2(a) in relation to all schools other than schools established, owned or controlled by the Central Government within the territory of a State, the State Government. It is pointed out that no 8 such rules have been framed till today. Hence the TET cannot be held de hors the Act and the Rules. Learned Additional Advocate General No.1 appearing on behalf of the State and some other respondents, on the other hand, raises at first an objection regarding maintainability of the writ petition. It is urged by him that the petitioners are not at all affected by the TET being conducted as the same is only a qualifying examination for eligibility to apply for appointment. He further submits that in terms of the relaxation granted by the Central Government also the trained candidates are to be first appointed and only thereafter if trained candidates are not available then untrained candidates are to be appointed as teachers. It is his submission that mere acquirement of eligibility by any person cannot be challenged by another, more so in the present circumstances when the rights of the trained candidates have been given priority and left intact. Since there has been no invasion of the legal rights of the petitioners, hence no mandamus can be issued. In support of the aforesaid proposition he cites a decision of the Supreme Court in the case of Mani Subrat 9 Jain etc. etc. vs. State of Haryana and others :AIR 1977 SC 276, in paragraph-9 of which it has been held as follows : “9. The High Court rightly dismissed the petitions. It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something…….”. On the merits it is submitted by learned AAG that after the enforcement of the RTE Act and keeping in view the pupil-teacher ratio laid down therein the State Government came to the conclusion that the requirement of elementary teachers in the State is about 3 lakhs out of which there was proposal to engage/appoint approximately one lakh elementary teachers and about 15,000 teachers at the secondary level in the coming next three years, whereas the number of trained candidates presently available could be estimated from the 94,205 applications submitted by the eligible trained candidates against 34,540 posts for which appointment process is going on in terms of the direction of the Supreme Court. It is further pointed out that in the said appointment process all the trained candidates 10 belonging to the Scheduled Castes, Scheduled Tribes, BC- 1 and Urdu, who had obtained teachers training qualification up to 23.1.2006 are expected to be absorbed and hardly a few would be available for appointments to be made thereafter. It is further stated that out of 94,205 trained candidates who have applied a large number of candidates are already engaged as Panchayat and Prakhand Teachers and once they are appointed there shall be that many vacancies in the Panchayat/Prakhand schools. Moreover, many of the said 94,205 trained candidates have already crossed even the age limit as per the ten years age relaxation given to trained candidates for TET. Learned counsel points out the figures given in the supplementary counter affidavit filed on behalf of the State to show that even in the applications totaling 28,04,388 for TET it has been found that the total number of trained candidates is 70,149 out of 19,78,488, i.e., 3.5% of the applications which have been scrutinized and if the remaining applications are considered then taking the said ratio the number of trained candidates who applied for TET would come to 98,153. This figure would include several candidates who possess qualifications from 11 unrecognized as also fake institutions and thus the contention of the petitioners regarding availability of huge number of trained candidates is falsified by the actual number of applications received earlier or with respect to the present TET also. It is thus the contention of the State that after the on going appointment of 34,540 candidates only about 30,000 to 35,000 eligible trained candidates would be available for appointment as elementary teachers which would be insufficient for making the immediate appointment of one lakh teachers. It is thus submitted by learned AAG that in the facts and circumstances as laid down above it cannot be said that the action of the Central Government in granting the relaxation is either irrational, arbitrary or unreasonable. The submission of learned counsel is that nothing has been produced by the petitioners to clearly controvert the facts and figures brought on the record by the State and whatever factual statements are made on behalf of the petitioners are mere conjectures and thus raised disputed questions of fact which cannot and should not be the basis of exercise of discretion by this Court. In support of the proposition learned AAG has relied upon a 12 decision of the Supreme Court in the case of Tata Cellular vs. Union of India : (1994) 6 SCC 651; paragraphs 77, 80, 81 & 83 of the said decision are quoted below : “77. The duty of the court is to confine itself to the question of legality. Its concern should be : 1. Whether a decision-making authority exceeded its powers ? 2. Committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under : (i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, “consider 13 whether something has gone wrong of a nature and degree which requires its intervention”. 80. At this stage, The Supreme Court Practice, 1993, Vol. 1, pp. 849-850, may be quoted : “4. Wednesbury principle.- A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. V. Wednesbury Corpn., per Lord Greene, M.R.)” 81. Two other facets of irrationality may be mentioned. (1) It is open to the court to review the decision-maker‟s evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. Thus, in Emma Hotels Ltd. v. Secretary of State for Environment, the Secretary of State referred to a number of factors which led him to the conclusion that a non-resident‟s bar in a hotel was operated in such a way that the bar was not an incident of the hotel use for planning purposes, but constituted a separate use. The Divisional Court analysed the factors which led the Secretary of State to that conclusion and, having done so, set it aside. Donaldson, L.J. said that he could not see on what basis the Secretary of State had reached his conclusion. (2) A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. On this basis in R. v. Barnet London Borough Council, ex p Johnson the condition imposed by a local authority prohibiting participation by those affiliated with political parties at events to be held in the authority‟s parks was struck down. 14 83. A modern comprehensive statement about judicial review by Lord Denning is very apposite; it is perhaps worthwhile noting that he stresses the supervisory nature of the jurisdiction: “Parliament often entrusts the decision of a matter to a specified person or body, without providing for any appeal. It may be a judicial decision, or a quasi-judicial decision, or an administrative decision. Sometimes Parliament says its decision is to be final. At other times it says nothing about it. In all these cases the courts will not themselves take the place of the body to whom Parliament has entrusted the decision. The courts will not themselves embark on a rehearing of the matter. See Healey v. Minister of Health. But nevertheless, the courts will, if called upon, act in a supervisory capacity. They will see that the decision-making body acts fairly. See H.K.(an infant), Re, and R. v. Gaming Board for Great Britain, ex p Benaim and Khaida. The courts will ensure that the body acts in accordance with the law. If a question arises on the interpretation of words, the courts will decide it by declaring what is the correct interpretation. See Punton v. Ministry of Pensions and National Insurance. And if the decision-making body has gone wrong in its interpretation they can set its order aside. See Ashbridge Investments Ltd. v. Minister of Housing and Local Government. ( I know of some expressions to the contrary but they are not correct). If the decision-making body is influenced by considerations which ought not to influence it; or fails to take into account matters which it ought to take into account, the court will interfere. See Padfield v. Minister of Agriculture, Fisheries and Food. If the decision-making body comes to its decision on no evidence or comes to an unreasonable finding – so unreasonable that a reasonable person would not have come to it – then again the courts will interfere. See Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. If the decision-making body goes outside its powers or misconstrues the extent of its powers, then, too the courts can interfere. See 15 Anisminic Ltd. v. Foreign Compensation Commission. And, of course, if the body acts in bad faith or for an ulterior object, which is not authorized by law, its decision will be set aside. See Sydney Municipal Council v. Compbell. In exercising these powers, the courts will take into account any reasons which the body may give for its decisions. If it gives no reasons – in a case when it may reasonably be expected to do so, the courts may infer that it has no good reason for reaching its conclusion, and act accordingly. See Padfield case (as AC pp. 1007, 1061).” Learned counsel for the State also relies upon a decision of the Supreme Court in the case of Mansukhlal Vithaldas Chauhan vs. State of Gujarat : (1997) 7 SCC 622 in which relying upon the decision of the Tata Cellular case (supra) and other decisions similar proposition has been laid down. Learned counsels for the Union of India and National Council for Teachers Education adopt the submissions made by learned counsel for the State. I have considered the submissions made by learned counsels for the parties. At the outset this Court may notice challenge to the maintainability of the writ petition made by learned AAG raising the plea that the petitioners have no legal right and they cannot be permitted to come before this Court and claim issuance of writ of mandamus since the examination in question is only a 16 qualifying examination to become eligible for appointment as a teacher and not a competitive examination for appointment. This Court does not find any force in the said submission. The petitioners being trained candidates have certainly right to come to this Court and claim quashing of the concerned notification on the ground that the pre- conditions laid down in the Act did not exist in the present case and thus the relaxation for untrained candidates is illegal and invalid. The petitioners being applicants for the said eligibility test and having a substantial interest in the appointment process also it is open to them to challenge any act of the State which is contrary to the statutory provisions and rules or guidelines framed thereunder. If the stand of learned counsel for the State is accepted then the State authorities will be liable to get away with any illegality they have committed only on the ground that those who have approached this Court may not be immediately affected by others becoming eligible for appointment only and not for the appointment process itself. It is not known as to who else can then be in a position to challenge the illegal acts of the State committed in such matter. The objection of learned AAG regarding 17 maintainability of the writ petition does not have any sound basis and is accordingly rejected. The principal issue to be considered by this Court in the present matter is as to whether the relaxation granted by the Central Government by the impugned notification dated 1.6.2011 is in accordance with the provisions of Section 23(2) of the Act. In this regard it would be useful to notice the provisions of Section 23 of the Act, which are quoted hereunder : “23(1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorized by the Central Government, by notification, shall be eligible for appointment as a teacher. (2) Where a State does not have adequate institutions offering course 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 : 18 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.” On a consideration of the said provisions it is evident that eligibility for appointment as a teacher has to be on the basis of minimum qualifications as may be laid down by the appropriate authority authorized by the Central Government. By a Notification dated 31.3.2010 published in the Gazette of India dated 5.4.2010 the Government of India in exercise of powers conferred under Section 23(1) of the Act has authorized the