IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 772 (SS) of 2011 Baldev Singh and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 560 (SS) of 2011 Smt. Menakshi …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 561 (SS) of 2011 Vandana and another …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 563 (SS) of 2011 Jagdamba Prasad Semwal and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 564 (SS) of 2011 Anand Singh Bhandari …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 565 (SS) of 2011 Ashish Bharti …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 574 (SS) of 2011 Smt. Rekha Arya and others …Petitioners Versus State of Uttarakhand and others …Respondents With 2 Writ Petition No. 581 (SS) of 2011 Dev Raj and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 597 (SS) of 2011 Shailendra Dumka and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 618 (SS) of 2011 Vinod Kumar Pathak and another …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 629 (SS) of 2011 Jawahar Singh and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 632 (SS) of 2011 Dayanand Tamta and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 634 (SS) of 2011 Smt. Saraswati Manral and another …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 637 (SS) of 2011 Smt. Poornima Patni and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 640 (SS) of 2011 Suresh Chandra Naithani …Petitioner Versus State of Uttarakhand and others …Respondents 3 With Writ Petition No. 649 (SS) of 2011 Parvez Ul Haque …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 669 (SS) of 2011 Ramesh Chandra Mer and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 673 (SS) of 2011 Kailash Kumar Dass and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 674 (SS) of 2011 Umesh Chandra Saklani and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 677 (SS) of 2011 Bhupendra Singh Bisht and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 678 (SS) of 2011 Laxman Singh and another …Petitioners Versus State of Uttarakhand and others …Respondents With 4 Writ Petition No. 680 (SS) of 2011 Jagdish Chandra and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 682 (SS) of 2011 Rajendra Kumar Pathak and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 683 (SS) of 2011 Brij Mohan Singh Negi and another …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 684 (SS) of 2011 Uttam Singh and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 685 (SS) of 2011 Smt. Anita Bisht …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 686 (SS) of 2011 Sunil Kumar and another …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 691 (SS) of 2011 Dhirendra Singh Rawat and others …Petitioners Versus State of Uttarakhand and others …Respondents With 5 Writ Petition No. 693 (SS) of 2011 Pradeep Singh Aneriya and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 694 (SS) of 2011 Vineet Bhatt and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 697 (SS) of 2011 Bhim Pal Singh and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 698 (SS) of 2011 Smt. Rama Goswami …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 700 (SS) of 2011 Km. Sunita Uniyal and another …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 701 (SS) of 2011 Sanjay Kumar and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 703 (SS) of 2011 Anil Rawat and others …Petitioners Versus State of Uttarakhand and others …Respondents With 6 Writ Petition No. 705 (SS) of 2011 Binod Kumar Joshi and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 709 (SS) of 2011 Kuldeep Singh Kandari and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 710 (SS) of 2011 Smt. Santosh …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 711 (SS) of 2011 Heera Lal and others ...Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 714 (SS) of 2011 Dharmendra Kumar and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 715 (SS) of 2011 Anamika and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 716 (SS) of 2011 Nirmala Goswami and others …Petitioners Versus State of Uttarakhand and others …Respondents With 7 Writ Petition No. 717 (SS) of 2011 Mohd. Nasir and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 718 (SS) of 2011 Raghunath Singh and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 719 (SS) of 2011 Jyoti Joshi @ Jyoti Tiwari …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 720 (SS) of 2011 Priya Joshi and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 725 (SS) of 2011 Jagdish Chandra Pandey and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 726 (SS) of 2011 Smt. Gayatri and another …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 730 (SS) of 2011 Kaushal Kishore Lohani and another …Petitioners Versus State of Uttarakhand and others …Respondents With 8 Writ Petition No. 731 (SS) of 2011 Hitendra Singh Adhikari and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 732 (SS) of 2011 Sagar Bhatt and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 733 (SS) of 2011 Madan Mohan Joshi and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 735 (SS) of 2011 Arvind Kumar and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 736 (SS) of 2011 Sarvendra Singh and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 737 (SS) of 2011 Ravi Kumar Pant and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 738 (SS) of 2011 Saraswati and others …Petitioners Versus State of Uttarakhand and others …Respondents With 9 Writ Petition No. 740 (SS) of 2011 Padam Singh and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 741 (SS) of 2011 Ms. Lalita Chilwal and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 742 (SS) of 2011 Gulab Singh …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 743 (SS) of 2011 Jyoti Bohra and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 746 (SS) of 2011 Vijendra Singh and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 747 (SS) of 2011 Girish Chandra Joshi and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 749 (SS) of 2011 Geeta Chand and others …Petitioners Versus State of Uttarakhand and others …Respondents With 10 Writ Petition No. 751 (SS) of 2011 Smt. Geeta Upadhyaya and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 752 (SS) of 2011 Padam Ram and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 753 (SS) of 2011 Smt. Hemanti Dhami and another …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 755 (SS) of 2011 Naveen Kumar Singh and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 756 (SS) of 2011 Umesh Chandra Oli and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 757 (SS) of 2011 Inder Singh Bisht and others …Petitioners Versus State of Uttarakhand and others …Respondents With 11 Writ Petition No. 759 (SS) of 2011 Nisha and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 760 (SS) of 2011 Daleep Singh and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 761 (SS) of 2011 Gautam Joshi and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 763 (SS) of 2011 Devendra Kumar and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 764 (SS) of 2011 Jagdish Singh and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 767 (SS) of 2011 Anjali Lobiyal and another …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 768 (SS) of 2011 Devi Prasad and another …Petitioners Versus State of Uttarakhand and others …Respondents With 12 Writ Petition No. 769 (SS) of 2011 Kundan Lal and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 770 (SS) of 2011 Balvinder Chand …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 771 (SS) of 2011 Gokul Garia and another …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 773 (SS) of 2011 Naveen Bhagwat …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 774 (SS) of 2011 Manoj Singh …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 779 (SS) of 2011 Smt. Nidhi Agarwal and others …Petitioners Versus State of Uttarakhand and others …Respondents With 13 Writ Petition No. 780 (SS) of 2011 Hemant Singh and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 781 (SS) of 2011 Sanjeev Kumar and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 791 (SS) of 2011 Km. Pushpa Pandey and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 796 (SS) of 2011 Heera Singh …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 797 (SS) of 2011 Kumari Seema Agari …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 814 (SS) of 2011 Pankaj Ashwal and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 831 (SS) of 2011 Amar Singh and others …Petitioners Versus State of Uttarakhand and others …Respondents 14 With Writ Petition No. 832 (SS) of 2011 Dharmendra Kumar and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 833 (SS) of 2011 Pushkar Singh Kholia and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 834 (SS) of 2011 Mukesh Kumar and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 835 (SS) of 2011 Anil Kumar Joshi and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 836 (SS) of 2011 Bhuvan Chandra Harbola and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 837 (SS) of 2011 Rameshwar and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 838 (SS) of 2011 Shobha Joshi …Petitioner Versus State of Uttarakhand and others …Respondents With 15 Writ Petition No. 839 (SS) of 2011 Ramesh Singh and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 840 (SS) of 2011 Prakash Chandra Pathak …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 841 (SS) of 2011 Yogesh Kumar and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 844 (SS) of 2011 Nasdool Hasan and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 847 (SS) of 2011 Netra Singh Koranga …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 867 (SS) of 2011 Ghanshyam Ballabh Joshi …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 882 (SS) of 2011 Hemwati Nandan and others …Petitioners Versus State of Uttarakhand and others …Respondents 16 With Writ Petition No. 936 (SS) of 2011 Smt. Laxmi …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 941 (SS) of 2011 Geetanjali and others …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 942 (SS) of 2011 Kailash Chandra and another …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 943 (SS) of 2011 Chandan Prasad …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 946 (SS) of 2011 Ganpati and another …Petitioners Versus State of Uttarakhand and others …Respondents With Writ Petition No. 948 (SS) of 2011 Bijendra Kumar …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 980 (SS) of 2011 Dinesh Chandra …Petitioner Versus State of Uttarakhand and others …Respondents With 17 Writ Petition No. 1032 (SS) of 2011 Hema Bhatt …Petitioner Versus State of Uttarakhand and others …Respondents With Writ Petition No. 1050 (SS) of 2011 Bhupesh Chandra Pandey …Petitioner Versus State of Uttarakhand and others …Respondents And With Petition No. 1074 (SS) of 2011 Ashokraj and others …Petitioners Versus State of Uttarakhand and others …Respondents Present : Mr. D.K. Joshi, Mr. Pradeep Hairiya, Mr. Rakesh Kunwar, Mr. Narendra Bali, Mr. Niranjan Bhatt, Mr. S.M.S. Mehta, Mr. Kamlesh Lohani, Mr. R.C. Tamta, Mr. Bhagwat Mehra, Mr. G.D. Joshi, Mr. Sanjay Raturi, Mr. Shailendra Nauriyal, Mr. Puran Singh Bisht, Mr. Yogesh Pacholia, Mr. T.A. Khan, Mr. Kishore Kumar, Mr. Veer Kunwar Singh, Mr. M.K. Ray, Mr. S.C. Bhatt, Mr. Rajeev Sharma, Mr. H.S. Rawal, Mr. Bhuwnesh Joshi, Mr. Narayan Singh Negi, Ms. Gaura Dev, Mr. Sandeep Tiwari, Mr. R.K.S. Verma, Mr. B.S. Negi, Mr. Yogesh Pandey, Mr. T.P.S. Takuli, Mr. Rajesh Sharma, Mr. Ghanshyam Joshi, Mr. Narain Dutt, Mr. Puran Joshi, Mr. D.C. Joshi, Mr. A.V. Pundir, Mr. D.S. Patni, Mr. B.D. Pande, Ms. Deepa Arya, Mr. Pracheta Singh, Mr. Pankaj Negi, Mr. G.S. Negi, Mr. Mohit Maulekhi, Mr. S.S. Chaudhary, Mr. B.M. Pingal, Mr. T.K. Nailwal, Mr. Lokendra Dobhal, Mr. Pankaj Chaturvedi, Mr. H.C. Lohani, Mr. D.S. Mehta, Mr. S.S. Yadav and Mr. Dinesh Chauhan, Advocates for the petitioners. Mr. N.P. Sah, Standing Counsel and Mr. Anil Kumar Bisht, Brief Holder for the State of Uttarakhand. Mr. V.B.S. Negi, Assistant Solicitor General for the Union of India. Mr. Sudhir Singh, Advocate for the National Council for Teacher Education. Ms. Seema Sah, Ms. Geeta Parihar and Mr. Asif Ali, Advocates for the Uttarakhand Vidyalayi Shiksha Parishad. Hon’ble Sudhanshu Dhulia, J. (oral) Heard Mr. D.K. Joshi and Mr. Pradeep Hairiya, Advocate for the petitioners, Mr. N.P. Sah, Standing Counsel and Mr. Anil Kumar Bisht, Brief Holder for the State of 18 Uttarakhand, Mr. V.B.S. Negi, Assistant Solicitor General for the Union of India, Mr. Sudhir Singh, Advocate for the National Council for Teacher Education and Ms. Seema Sah, Ms. Geeta Parihar and Mr. Asif Ali, Advocates for the “Uttarakhand Vidyalayi Shiksha Parishad”. While one may take a just pride in the progress the country has made since its independence, yet one cannot fail to notice some crucial sectors which remained rather neglected. “Elementary education”, being one of them. All the same, things are now looking for better with the Right to Education being incorporated as a Fundamental Right, in Part III of the Constitution of India, vide Constitution (Eighty Sixth Amendment) Act. The newly incorporated provision which is Article 21-A of the Constitution of India reads as follows :- “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.” In furtherance to the above, the Parliament enacted a legislation known as, Right to Children to Free and Compulsory Education Act, 2009 (from hereinafter referred to as the Act), which not only seeks to provide every child a right to elementary education, but a right to a “meaningful” elementary education! One of the important features of this Act is that it seeks to give the nation a better quality of teachers who will impart elementary education, which has now become compulsory. Before this Court is now under challenge the validity of a “test” known as “Teachers Eligibility Test” (for short, TET) which one must qualify with 60 % of marks, in order to become eligible as a teacher in an elementary 19 school. What is also challenged before this Court is the “eligibility” prescribed for a candidate to even appear for this test i.e. TET. This Court has been called upon to examine the validity of the above two conditions. Prior to the constitutional 86th Amendment free and compulsory education for all children (upto 14 years of age) was in Part IV of the Constitution of India as a Directive Principle of State Policy. Article 45 of the Constitution of India reads as follows :- “45. Provision for early childhood care and education to children below the age of six years. – The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.” Now from a mere directive to the State, as it was earlier, it is now a Fundamental Right, which is Article 21-A of the Constitution of India as now “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”. In furtherance thereof came the Act already referred above. The statement of Objects and Reasons of this Act reflect the importance of this legislation, where it is stated thus - “over the years there has been significant spatial and numerical expansion of elementary schools in the country, yet the goal of universal elementary education continues to elude us. The number of children, particularly children from disadvantaged groups and weaker sections, who drop out of school before completing elementary education, remains very large. Moreover, the quality of learning achievement is not always entirely satisfactory even in the case of children who complete elementary education”. 20 What the Act seeks was also summarized in its Objects and Reasons as follows :- “(a) that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards; (b) “compulsory education” casts an obligation on the appropriate Government to provide and ensure admission, attendance and completion of elementary education; (c) “free education” means that no child, other than a child who has been admitted by his or her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education; (d) the duties and responsibilities of the appropriate Governments, local authorities, parents, schools and teachers in providing free and compulsory education; and (e) a system for protection of the right of children and a decentralized grievance redressal mechanism.” It further states that the values of our constitution of equality, social justice and democracy and in fact the creation of a just and humane society can be achieved only through provision of inclusive elementary education to all as “Provision of free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections is, therefore, not merely the responsibility of schools run or supported by the appropriate Governments, but also of schools which are not dependent on Government funds”. We shall now examine some of the important provisions of the Act. “Child” has been defined under Section 2(c) of the Act, which reads as under:- “(c) “Child” means a male or female child of the age of six to fourteen years.” 21 “Elementary education” has been defined under Section 2 (f) of the Act, which reads as under :- “(f) "elementary education" means the education from first class to eighth class;” Section 3 which is its most important section and which actually gives right to a child, as proposed under the Act, reads as follows :- (3) Right of child to free and compulsory education. – (1) Every child of the age of six to fourteen years shall have a right to free and compulsory education in a neighbourhood school till completion of elementary education. (2) For the purpose of sub-section (1), no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing the elementary education: Provided that a child suffering from disability, as defined in clause (i) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection and Full Participation) Act, 1996 (1 of 1996), shall have the right to pursue free and compulsory elementary education in accordance with the provisions of Chapter V of the said Act.” Further there are special provisions in the Act for a child who is not admitted to or who has not completed elementary education, which is under Section 4 of the Act. Duties have been caste upon the appropriate Government i.e. the Central, State or the Union Territory, as the case may be, under Section 8 of the Act, who are to provide free and compulsory education to every child. Under Section 10 of the Act a duty has also been caste upon parents and guardians. Further under Section 10, non-governmental schools can only establish and impart elementary education if they are duly recognized. Norms and standards have been set for such schools under Section 19 of the Act. There is now to be strictly followed a Pupil-Teacher ratio set up under Section 25 read with the schedule of the Act. There 22 are other controlling and regulatory mechanisms under the Act which we may not be necessary for us to discuss in the present case. All the same, a bare examination of the provisions of this Act reveal that not only is elementary education has now to be free and compulsory but this education has to be a meaningful education of a certain standard which would in turn mean that those who have been assigned the duty of imparting this elementary education must be competent. Section 23 of the Act addresses this issue, which reads as follows :- “23. (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, teacher shall be such as may prescribed.” Therefore under Section 23 (1) of the Act only a person possessing such minimum qualification, as laid down by an academic authority (duly authorized by the Central Government) shall be eligible for appointment as a teacher in an elementary school The academic authority which has been authorized by the Central