IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 559 OF 2011 (S/S) Anil Kumar Lahumi & others … Petitioners Versus State of Uttarakhand and others … Respondents With WRIT PETITION NO. 572 OF 2011 (S/S) Girish Chandra Nautiyal & others … Petitioners Versus State of Uttarakhand and others … Respondents With WRIT PETITION NO. 573 OF 2011 (S/S) Smt. Mamta Karayat & others … Petitioners Versus State of Uttarakhand and others … Respondents With WRIT PETITION NO. 790 OF 2011 (S/S) Kuldeep Singh … Petitioner Versus State of Uttarakhand and others … Respondents With WRIT PETITION NO. 829 OF 2011 (S/S) Himanshu Kumar & others … Petitioners Versus State of Uttarakhand and others … Respondents With WRIT PETITION NO. 1014 OF 2011 (S/S) Sanjiv Kumar & another … Petitioners Versus State of Uttarakhand and others … Respondents Present: Mr. D.K. Joshi, Mr, Niranjan Bhatt, Mr. K.N. Joshi, Mr. R.C. Tamta and Mr. B.S. Rawat, Advocates for the petitioners Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand Mr. Sudhir Singh, Advocate for respondent No. 3 Ms. Seema Sah and Ms. Geeta Parihar, Advocate for respondent No. 4 2 Hon’ble Sudhanshu Dhulia, J.(Oral) Heard Mr. D.K. Joshi, Advocate for the petitioners, Mr. N.P. Sah, Standing Counsel for the State, Mr. Sudhir Singh, Advocate for National Council for Teacher Education and Ms. Seema Sah and Geeta Parihar, Advocates for respondent No. 4/Uttarakhand Vidyalayi Shiksha Parishad. Though no counter affidavit has been filed by the National Council for Teacher Education. Counter affidavits in this case been filed by the State of Uttarakhand as well as by respondent No. 4. The Right to Education has been 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 3 order to become eligible as a teacher in an elementary school. Section 23 of the Right to Education Act, 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 Government to prescribe such minimum qualifications is a body known as “National Council for Teacher Education” (from hereinafter referred to as NCTE or the Council). Thus, authorized and duly notified by the Central Government under Section 23 (1) of the Act, NCTE had published a notification on 23.8.2010 (annexed as Annexure 4 No. 3 to the leading writ petition). The said notification prescribes qualifications of teachers in elementary schools. The notification opens as under :- “In exercise of the powers conferred by Sub- section (1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009), and in pursuance of Notification No. S.O. 750 (E) dated 31st March, 2010 issued by the Department of School Education and Literacy, Ministry of Human Resource Development, Government of India, the National Council for Teacher Education (NCTE) hereby lays down the following minimum qualifications for a person to be eligible for appointment as a teacher in class I to VIII in a school referred to in clause (n) of Section 2 of the Right to Children to Free and Compulsory Education Act, 2009, with effect from the date of this notification.” This notification divides the category of teachers as well as category of school in elementary education into two. First is from class I - class V, which is known as primary school and the second is class VI – VIII, which is known as senior primary school also known as junior high school, in the State of Uttarakhand. It prescribes minimum qualification for teachers as under : “Minimum Qualifications:- Classes I-V (a) Senior Secondary (or its equivalent) with at least 50% marks and 2 years Diploma in Elementary Education (by whatever name known) OR Senior Secondary (or its equivalent) with at least 45% marks and 2 years Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations 2002. OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor of Elementary Education (B.El.Ed.) OR 5 Senior Secondary (or its equivalent) with at least 50% marks and 2 year Diploma in Education (Special Education) AND (b) Pass in the Teacher Eligibility Text (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose. Classes VI-VIII (a) B.A./B.Sc. and 2 year Diploma in Elementary Education (by whatever name known) OR B.A./B.Sc. with at least 50% marks and 1 year Bachelor in Education (B.Ed.), in accordance with the NCTE (Recognition Norms and Procedure), Regulations issued from time to time in this regard. OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year Bachelor of Elementary Education (B.El.Ed.) OR Senior Secondary (or its equivalent) with at least 50% marks and 4 year BA/B.Sc. Ed. Or B.A.Ed./B.Sc.Ed. OR B.A./B.Sc. with at least 50% marks and 1 year B.Ed. (Special Education) AND (b) Pass in the Teacher Eligibility Text (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose. We are presently concerned only with the teachers qualification relating to classes from I to V. Clause 3 of the said notification, creates an interesting classification, which reads as follows:- “3 Training to be undergone:- A person (a) with B.A/B.Sc. with at least 50% marks and B.Ed. qualification shall also be eligible for appointment for class I to V upto 1st January, 2012, provided he undergoes, after appointment an NCTE recognized 6 months special programme in Elementary Education. (b) With D.Ed. (Special Education) or B.Ed. (Special Education) qualification shall 6 undergo, after appointment, an NCTE recognized 6 month special programme in Elementary Education.” Consequent to the said notification by the Council, the State of Uttarakhand issued a Government Order on 29.4.2011 whereby it has invited applications from “eligible candidates” for an examination which is Teachers Eligibility Test (for short, TET). The eligibility and the qualifications for a candidate to appear in this test are the same as fixed by the Council vide its notification dated 23.8.2010. This examination which was earlier to be held in July, 2011 was subsequently postponed and now it is to be held on 27.8.2011. Therefore, as we have noticed, a candidate, to become eligible to appear for this test (Teachers Eligibility Test) a special category has been curbed out of such graduates who have at least 50% marks in their graduation with a B.Ed. qualification. The petitioners before this Court are graduates with another qualification, which is B.P.Ed. (i.e. Bachelor in Physical Education), they claim equivalence with that of B.Ed. Such an equivalence cannot be granted for the simple reason that petitioners are not trained in classroom education, but in physical education. The requirement under the guidelines issued by the National Council for Teacher Education (from hereinafter referred to as ‘NCTE’) dated 23rd August, 2009, is a training in classroom education, which is B.T.C. or B.Ed. Though this Court has given liberty to the petitioner in Writ Petition No. 655 of 2011, Rajiv Kuar Vs State of Uttarakhand & others, who had L.T. qualification to make representation to the State Government in view of the provision of Section 23 Clause (2) 7 of the Right of Children to Free and Compulsory Education Act, 2009 (from hereinafter referred to as the “Act”). Section 23 of the Act reads as 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, teacher shall be such as may prescribed. All the same, this Court is of a considered view that it would not be appropriate to grant the same liberty to the petitioners, for the reasons that B.P.Ed. trained candidates are not on the similar footing as an L.T. trained candidates, much less B.Ed. candidates. These writ petitions thus fail and are accordingly dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 20.08.2011 Aswal