HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 29.02.2016 in Court No.29
Delivered on 07/04/2016 in Court No.21
Case :- SPECIAL APPEAL No. - 915 of 2015
Appellant :- Uttar Pradesh Basic Shiksha Parishad
Respondent :- Sakshi Shukla & 7 Others
Counsel for Appellant :- Arun Kumar
Counsel for Respondent :- C.S.C.,Rashmi Tripathi,Satyendra Chandra Tripath,Shailendra
Hon'ble V.K. Shukla,J.
Hon'ble Mahesh Chandra Tripathi,J.
(PER : V.K. Shukla, J)
Uttar Pradesh Basic Shiksha Parishad Allahabad through its Secretary, respondent-appellant is before this Court assailing the validity of judgement and order of learned Single Judge dated 16th February, 2015 passed in Writ Petition No.9416 of 2015 (Sakshi Shukla and others vs. State of U.P. and others), by which the petition filed by petitioners, under Article 226 of the Constitution of India, has been allowed with the direction to the respondent-appellant, U.P. Basic Shiksha Parishad Allahabad to issue a corrigendum to the advertisement dated 12.12.2014 indicating therein Nursery Teacher Training (N.T.T.) as the eligibility qualification and accordingly allowing petitioners to fill up the application form and their candidature be considered.
Brief background of the matter is that pursuant to Government Order dated 9th December, 2014 notifying the recruitment, for filling up 15000 posts of Assistant Teachers in Junior Basic Schools run by U.P. Basic Shiksha Parishad, Allahabad, the District Basic Education Officer of various districts of U.P. advertised the aforesaid vacancies in their respective districts on 12.12.2014 and 13.12.2014. Petitioners-opposite party proceeded to challenge the advertisement dated 13.12.2014 issued in pursuance of Government Order dated 9th December, 2014 by filing Civil Misc. Writ Petition No.9416/2015 seeking a writ of certiorari quashing the aforesaid advertisement and for a further direction in the nature of mandamus commanding the respondent-appellant to re-advertise the vacancies after including Nursery Teachers Training as a necessary qualification.
The said writ petition in question has been allowed vide judgement and order dated 16th February, 2015 passed in Civil Misc. Writ Petition No.9416/2015 (Sakshi Shukla and others vs. State of U.P. and others) following the law laid down by the Division Bench of this Court in the case of Uma Yadav and another vs. State of U.P. and others (Special Appeal Defective No.278 of 2014), as well as upon the judgement of another Division Bench of this Court in the case of Harsh Kumar and another vs. State of U.P. And others (Special Appeal Defective No.130 of 2014) and based on the same directives have been issued to issue corrigendum to the advertisement dated 12.12.2014 indicating therein N.T.T. as an eligibility qualification and the petitioners be allowed to fill-up the application form and their candidature be considered. Against this order in question, present Special Appeal in question has been filed by U.P. Basic Shiksha Parishad Allahabad.
On the presentation of the Special Appeal in question, U.P. Basic Siksha Parishad Allahabad through its Secretary has been submitting that learned Single Judge has clearly transgressed and overstepped its jurisdiction at the point of time when directives have been issued to issue corrigendum to the advertisement dated 12.12.2014 by including therein N.T.T. also as one of the eligibility qualification and petitioners-respondents be allowed to fill up form and their candidatures be considered, whereas the fact of the matter is that N.T.T. is not at all a qualification recognized by National Council for Teachers Education (N.C.T.E.) for imparting education to students of Class I to V and issuance of such directives is totally unjustifiable, inasmuch as, N.T.T. course is not recognized under Appendix I or II of Recognition (Norms and Procedure) Regulation 2009 as well as other relevant provisions.
N.C.T.E. was not a party before the learned Single Judge and as respondent-appellant has been submitting before this Court that N.T.T. course is not recognized by the N.C.T.E. for being appointed as a Teacher for Class I to V, we, in our turn, asked Ms. Rashmi Tripathi, who represents N.C.T.E., to obtain requisite instructions in the matter and thereafter requisite instructions have been obtained by her and then on 20th January, 2016, we proceeded to pass following order:
"On the matter being taken up today, requisite instruction so obtained by Ms. Rashmi Tripathi, Advocate are as follows:-
1. NTT course is not recognized under Appendix 1 or 2 of the Recognition (norms and procedure) Regulations 2009. Appendix 1 is meant for Diploma in Early Childhood Education programme leading to D.E.C.Ed.
2. NCTE grants recognition for early Childhood Education as per norms and Standard given under appendix 1 and elementary Education under appendix 2 of Recognition (norms and procedure) Regulations 2009.
The candidate obtained diploma in NTT which was recognized as per Recognition (norms and procedure) Regulations 2002 was notified on 13.11.2002 which inter-alia takes care of NTT programme is basically meant for children in the age group of 4-6 followed by first 2 years of formal education i.e. of children in the age group of 6-8 years.
In other words this programme integrates Pre School teacher eduction programme and Nursery Teacher Education both. However so far as appointment of Assistant Teacher is concerned which teaches from class 1 to V. The NTT Diploma holders are not eligible for appointment of same.
3. No, NTT course as mentioned in Government order dated 30.06.2010 is not recognized under appendix 1 or 2 of Recognition (norms and procedure) Regulation 2009. However NTT. Course is recognized as per appendix 4 of Recognition (norms and procedure) Regulations 2002.
4. In Recognition (norms and procedure) Regulations 2009 under appendix 1 has subsumed Pre School Teacher Education programme (PTT) and Nursery Teacher Training Programme (NTT) both i.e. appendix 3 and 4 of Recognition (norms and procedure) Regulations 2002 and thereby changed the nomenclature of Diploma in Early Childhood Education (D.E.C.Ed.) as appendix 1. Further NTT Course of 2 years duration in Dau Dayal P.G. College was granted recognition under appendix 4 of Regulation 2002 and not under Regulations 2009.
We feel appropriate that a responsible officer of N.C.T.E. should file affidavit before this Court in reference to the averment that has been mentioned in the letter addressed to the counsel concern.
In this regard, one week time is accorded to Ms. Rashmi Tripathi, Advocate for enabling her to file affidavit before this Court. Copy of affidavit be served on Sri Shailendra Advocate as well as Sri Arun Kumar Advocate in all eventuality by 01.02.2016.
Put up this case on 04.02.2016 in computer list."
Pursuant to the directives issued by us, Regional Director based at N.C.T.E. on behalf of N.C.T.E. proceeded to file affidavit and in the affidavit that has been so filed following averments have been mentioned:
"That the candidates who have obtained diploma in N.T.T. Course from Dau Dayal Mahila (P.G.) College Firozabad which was recognized on 13.04.2004 as per Appendix-4 of Regulation 2002 known as Norms and Standards for Nursery Teacher Education Programme (form of Application for recognition, the time limit of submission of application, Determination of Norms and Standards for Recognition of Teachers Education Programme and permission to start new course of training), Regulation 2002.
That Regulation 2002 has been notified on 13.11.2002 which was published in the Gazette of India Extraordinary Part III Section 4 as No.248 of November 18, 2002.
That N.T.T. Course is basically meant for children in the age group of 4 to 6 followed by the first two years in a formal school i.e. of children in the age group of 6 to 8 (as mentioned in appendix-4 of Regulation 2002.
That N.T.T. Course is not recognized under Appendix-1 or Appendix-2 of the N.C.T.E. (Recognition Norms and Procedure), Regulations 2009. Appendix-I of Regulation 2009 is only meant for Early Childhood Education Programme leading to Diploma in Early Childhood Education (D.E.C.Ed.).
That Early Childhood Education ECE including Class I and II of the Primary Education is of crucial importance especially from the point of view of the development of child's language, intelligence and personality.
That Appendix-2 of Regulation 2009 is meant for Diploma in Elementary Teacher Education Programme leading to Diploma in Elementary Education (D.E.C.Ed.).
That Elementary Teacher Education Programme aims at preparing teachers for elementary stage of education i.e. Class I to VI/VIII.
In Recognition (Norms and Procedure) Regulation 2009, under Appendix-I has subsumed Pre-School Teacher Education Programme (P.T.T.) and Nursery Teacher Training Programme (N.T.T.) both i.e. appendix-3 and 4 of Recognition (Norms and Procedure) Regulation 2002 and thereby changed the nomenclature of Diploma in Early Childhood Education (D.E.C.Ed.) as appendix-1. Further N.T.T. Course of 2 years duration in Dau Dayal P.G. Mahila College was granted Recognition under appendix-4 of the Regulation 2002 and not under the Regulations of 2009.
That N.T.T. Course as mentioned in the Government Order dated 30.06.2010 annexed as annexure 2 to the affidavit filed alongwith Special Appeal is not recognized under the Appendix-1 or 2 of the Regulations 2009. However, N.T.T. Course is Recognized as per Appendix-4 of the Regulation 2002.
That however so far as the appointment of Assistant Teacher is concerned which teachers from class 1 to 5, the N.T.T. Course holders are not eligible for appointment of the same."
Copy of this Short Affidavit has been served upon Shri Shailendra, Advocate representing the petitioners-opposite parties no. 1 to 6 as well as on Shri Arun Kumar, Advocate, who has been representing respondent-appellant before this Court and thereafter a Short Counter Affidavit has been filed on behalf of petitioners- opposite parties no.1 to 6 and therein following averments have been mentioned:
"That in order to bring certain documents, which are necessary to be demonstrated at the time of hearing of the aforesaid matter afresh, the answering respondent is filing the present Short Counter Affidavit just to enclose the documents and certain facts which have been concealed in the present special appeal.
That the aforesaid Special Appeal is being filed challenging the judgement and order dated 16.02.2015 passed by this Hon'ble Court in Writ Petition No.9416 of 2015 (Sakshi Shukal and 5 others vs. State of U.P. and 2 others).
That the aforesaid judgement dated 16.02.2015 has been passed relying on the judgement dated 11.03.2014 passed in Special Appeal (Defective) No.278 of 2014 (Uma Yadav and another vs. State of U.P. and others) and on another judgement dated 05.02.2014 passed in Special Appeal (Defective) No.130 of 2014 (Harsh Kumar and another vs. State of U.P. and others).
That in the judgement of Uma Yadav (supra) there was specific observation that only thing requires to be considered is that the appellant held notification strictly in accordance with the notification issued by the N.C.T.E. Para 16 quoted in para 4 of the judgement is hereby reproduced:-
"We clarify that the issue as to whether the appellants hold the qualifications strictly in accordance with the notification issued by the N.C.T.E. has not been decided by us since that is a matter of verification by the authority concerned."
And similar was the finding in case of Harsh Kumar, hence, only thing requires to be seen is that the qualification acquired by the appellant whether recognized by N.C.T.E. or not ?
That the appellant concealed the material fact before this Hon'ble Court that the aforesaid judgements were also challenged before the Apex Court in case of Uma Yadav (qualification NTT) and in the case of Brahm Singh (qualification B.E.Ld.) and SLP was filed and the same was dismissed on 1.7.2008. SLP No.8869 of 2015 (State of U.P. and others vs. Brahm Singh and others) filed against the judgement dated 26.02.2014 of Allahabad High Court and another SLP No.8908 of 2015 (State of U.P and others vs. Uma Yadav) has been filed arising out of the judgements dated 11.03.2014. Both these SLPs were dismissed by the Hon'ble Apex Court on 01.07.2015.
That so far as the case of Brahm singh is concerned, it has already been impleaded and notification in that respect has also been made by the State Government on 04.12.2015.
That so far as the eligibility is concerned, that requires to be governed by notification of NCTE dated 23.08.2010 and 29.07.2011.
That as per notification dated 29.07.2011, this could be verified that 2 year diploma alongwith graduation is mentioned as per eligibility for consideration for appointment in Classes-1 to 5. So far as the diploma is concerned, like diploma in education, for entry requirement in only intermediate. For courses like Nursery Teachers Training, it is a two year course but for entry, the graduation is minimum eligibility. To that extent, reference in Part-I of N.C.T.E. Notification, two year diploma for elementary education, there is specific mention whatever be name includes N.T.T.E.
That so far as the Nursery Teachers Training is concerned, it is a recognized course for National Council for Teacher Education. In reference to Dau Dayal Mahila P.G. College, copy of the letter dated 13.04.2004 issued by the NCTE granting approval for NTT course.
That so far institution Dau Dayal Mahila P.G. College is concerned, it also got affiliation by letter dated 17.03.2010 from Sachiv Pariksha Niyamak Adhikari.
That another notification came from the National Council for Teacher Education is dated 12.11.2014, which also includes the schools (pre school/nursery followed by 2 year informal school) i.e. class 1 and class 2, in which diploma in nursery education 2 year course is a valid qualification. Petitioner is relying upon Ist schedule of the notification. If the notification in nursery is sufficient for 2 year in formal school, eligibility cannot be denied for consideration for primary institution for Classes 1 to 5.
That in order to show that requirement for entry in NTT course is graduation, answering respondent is filing the notification as per Government Order dated 30.06.2010. In the said notification, there was no mention that this course is only for nursery.
That the answering respondent further requires to compare of diploma in Early Childhood Education including Classes-1 and 2 of primary education.
That in the preamble of Appendix-I, there is clearly mention that the Early Childhood Education includes Classes 1 and 2 to the Primary Education.
That there is a discrimination for Classes 1 and 2 as claimed by the State Government in Primary School and Pre Primary Schools. By perusal of the course, this could be verified that the course of NTT is better and more exhaustive than the course of D.E.C.Ed. It includes the course relating to primary and pre primary education. Clause-6 of the said course could be verified.
That so far as notification of U.P. T.E.T. Is concerned, the authorities have accepted that the Nursery Teacher Training Course is sufficient for appointment as Assistant Teacher in Classes 1 to 5 and that is why the UPTET 2011, 2013 to 2014, Nursery Teacher Training Course, trained teachers were allowed to appear in UPTET, treating them eligible for consideration for appointment as Assistant Teacher in primary institution.
That the answering respondent is also filing herewith the judgement in case of Harsh Kumar passed by Hon'ble Apex Court in SLP No.12060 and 12061 of 2014 dated 03.11.2014.
That it is necessary to mention here that allowing TET candidates to appear in UPTET itself confirms that the NTT holders were itself eligible as for Nursery Training Teacher could be requires. Fact could be verified from the notification of 2014.
That even earlier by Government order dated 4.1.1986, Government declare CT nursery and CT Home Science, equivalent to BTC."
On the basis of material that has come on record, present Special Appeal in question has been taken up for final hearing and disposal.
Shri Arun Kumar, Advocate appearing for U.P. Basic Shiksha Parishad submitted with vehemence before us that in the present case, the learned Single Judge has totally misunderstood the controversy in question by deciding the writ petition in question on the terms of the judgement delivered in the case of Uma Devi (Supra) and Harsh Kumar (Supra), whereas the fact of the matter is that both the aforementioned judgements are not at all applicable/attracted in the facts of the case as here N.T.T. course is not at all recognised under Appendix I and II of Recognition (Norms and Procedure) Regulation 2009 and once the N.T.T. certificate that has been acquired by petitioners-opposite parties was recognized only for a particular set of teaching, then they could not have been directed to be considered for teaching Class I to V and as such, the Special Appeal deserved to be allowed on the basis of pleadings that is available on record.
Learned Standing Counsel has also supported the view that has been raised by U.P. Basic Shiksha Parishad before this Court.
Ms. Rashmi Tripathi, Advocate, who has appeared on behalf of N.C.T.E., has also come up with the specific case that petitioners-respondents are ineligible to be appointed as teachers for teaching Classes I to V in the institutions run and managed by the U.P. Basic Shiksha Parishad at Allahabad.
Shri Shailendra, Advocate, who has appeared on behalf of petitioner-opposite parties nos.1 to 6, on the other hand contended that the issue that is being sought to be raised by respondent-appellant, cannot be permitted to be raised, inasmuch as, all such issues have been raised before the Apex Court in the case of Uma Yadav (supra) and the said issue did not find favour and as such, issue raised in the present Special Appeal are, in effect, barred by principal of res-judicata and coupled with this, the certificate which has been opted by the petitioners-respondents, therein Section 2(h) of the N.C.T.E. Act deals with elementary education, which is inclusive of teaching Class I and II and not only this, at the point of time, in reference of Teacher's Eligibility Test, State Government has accorded permission to N.T.T. diploma holders to pass T.E.T. Test, then to say that N.T.T. Certificate holder cannot teach Class I to V, is unacceptable and a closed chapter cannot be permitted to be reopened.
Before we proceed to consider the respective arguments, we proceed to take note of the fact that the National Council For Teacher Education, in its previous status since 1973, was an advisory body for the Central Government and State Government on all matters pertaining to teacher education, with its Secretariat in the Department of Teacher Education of The National Council of Educational Research and Training (N.C.E.R.T.). The National Policy on Education (N.P.E.), 1986 and the programme of action thereunder, envisaged a National Council for Teacher Education with statutory status and necessary resources as a first step for overhauling the system of teacher education. The National Council For Teacher Education, as a statutory body came into existence in pursuance of National Council For Teacher Education Act, 1993 (No.73 of 1993) on 17th August, 1995. The Parliament enacted the National Council for Teacher Education (Amendment) Act, 2011 to provide that the Act shall apply, inter-alia, to schools imparting pre-primary, primary, upper primary, secondary or senior secondary education and to colleges providing senior secondary or intermediate education and to teachers of such schools and colleges. Similarly, the expression 'school' was defined in Section 2(ka) to mean any recognised school imparting pre-primary, primary, upper primary, secondary or senior secondary education, or a college imparting senior secondary education. Section 12A was inserted into the principal legislation to empower the NCTE to determine the qualifications of persons to be recruited as teachers in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate school or college, by whatever name called, established, run, aided or recognised by the Central Government or by a State Government or a local or other authority.
By way of 8th Amendment 2002, made by the Parliament under Article 368, the rights of education to provide free and comulsory education to all children at the age of 6 to 14 years has been made as a fundamental right under Article 21(A) of the Constitution of India and to achieve goal of Article 21(A), the Parliament has also made an Act known as Right of Children to Free and Compulsory Education Act, 2009. Under Section 38 of the said Act, 2009, the State Government has also framed the statutory Rules on 27.07.2011 in the name of Right of Children of Free and Compulsory Education Rules, 2011.
Under the aforesaid provisions, the qualifications and prescription of norms for possessing qualifications have also been provided for. Central Government has enforced the said Act and has issued notification on 01.04.2010 authorising National Council for Teacher Education as the academic authority for laying down qualifications.
On 23rd August, 2010, the NCTE prescribed the minimum qualifications for a person to be eligible for appointment as a teacher for Classes I to VIII in a school referred to in Section 2(h) of the Act 2009 with effect from the date of notification. This notification was amended by the notification dated 29th July, 2011. As per the amended notification, the minimum qualifications which have been prescribed for appointment of an Assistant Teacher for teaching students from Classes I to V are now as follows:
"(i) Classes I-V.
(a) Senior Secondary (or its equivalent) with at least 45% marks and 2 year 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
Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Education (Special Education)
OR
Graduation and two year Diploma in Elementary Education (by whatever name known)
AND
(b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose."
The service conditions of the Teachers appointed in the institution run and controlled by the Basic Shiksha Parishad, U.P. Allahabad are governed under the provisions of Uttar Pradesh Basic Education (Teachers) Service Rule, 1981. The Rule 8 of the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 prescribes the essential qualifications of candidates for appointment of the Assistant Teachers in Junior Basic Schools (i.e. for class I to V) which is quoted herein as below:
Post
Academic Qualifications
(ii) Assistant Master and Assistant Mistresses of Junior Basic Schools.
Bachelor degree from a University established by law in India or a degree recognised by the Government equivalent thereto together with any other training course recognised by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate (B.T.C.), two year BTC (Urdu), Vishisht BTC and teacher eligibility test passed conducted by the Government of Uttar Pradesh or by the Government of India.
Rule 8 of the Uttar Pradsh Basic Education (Teachers) Service Rules, 1981 have been amended on 4th December, 2012 by 16th amendment and minimum qualification for appointment of teacher in Junior Basic Schools (i.e. for Class I to V) which is quoted herein as below:
Post
Academic Qualifications
(ii) Assistant Master and Assistant Mistresses of Junior Basic Schools.
Bachelor degree from a University established by law in India or a degree recognised by the Government equivalent thereto together with any other training course recognised by the Government as equivalent thereto together with the training qualification consisting of a Basic Teacher's Certificate (B.T.C.), two year BTC (Urdu), Vishisht BTC and teacher eligibility test passed conducted by the Government of Uttar Pradesh or by the Government of India.
(b) a Trainee Teacher who has completed successfully six months special training programme in elementary education recognised by NCTE
(iii) Trainee Teacher
Iii- Bachelor degree from a Unversity established by law in India or a degree recognised by the Government equivalent thereto together with B.Ed/B.Ed (Special Education)/D.Ed (Special Education) qualification and passed the teacher eligibility test conducted by the Government of Uttar Pradesh or by the Government of India.
However, in case of B.Ed (Special Education)/D.Ed (Special Education) a course recognised by Rehabilitation Council of India (RCI) only shall be considered.
Earlier N.T.T. course was not at all being run in private colleges and thereafter, said courses were permitted to be run in private colleges also and at the said point of time, recognition in question of said institutions were governed by Appendix IV of Regulation 2002 known as "Norms and Standard for Nursery Teacher Education Programme (Form of Application for Recognition, the Time Limit of Submission of Application, Determination of Norms and Standard for Recognition of Teachers Education Programme and Permission to Start the New Training/Court) Regulation, 2002". Dau Dayal Mahila P.G. College Firozabad has been accorded recognition on 13th April, 2004 as per Appendix IV of Regulation 2002. Regulation 2002 has been notified on 13th November, 2002 and same has been published in the Gazette of India (Extraordinary) Part III Section 4 as No.248 on November 18, 2002. N.T.T. course is meant for children in the age of Group IV to VI followed by first two years in the formal school i.e. of children in the age group of VI to VIII as mentioned in Appendix IV of Regulation 2002. N.T.T. course is not recognized under Apendix I or Appendix II of N.C.T.E. Recognition (Norms and Procedure) Regulation 2009 as Appendix I of Regulation 2009 is only meant for early childhood education programme leading to diploma and early childhood education. Appendix II of Regulation 2009 is meant for diploma in elementary teacher education programme leading to Diploma in Elementary Education (D.L.Ed.). Elementary Teacher Education Programme aims at preparing teachers for the elementary stage of education i.e. Class I to VI/VIII.
In Recognition (Norms and Procedure) Regulation 2009, under Appendix-I has subsumed Pre-School Teacher Education Programme (P.T.T.) and Nursery Teacher Training Programme (N.T.T.) both i.e. appendix-3 and 4 of Recognition (Norms and Procedure) Regulation 2002 and thereby changed the nomenclature of Diploma in Early Childhood Education (D.E.C.Ed.) as appendix-1.
National Council for Teacher Education has issued another notification dated 12th November, 2014. Notification dated 12th November, 2014 provides for as follows:-
"NATIONAL COUNCIL FOR TEACHER EDUCATION
NOTIFICATION
New Delhi, the 12th November, 2014
F.No.-62-1/2012/NCTE(N&S)- In exercise of the powers conferred under Clause (dd) of Sub-section (2) of Section 32 read with Section 12A of the National Council for Teacher Education Act, 1993(73 of 1993) and in supersession of the National Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001 except as respects things done or omitted to be done before such supersession, the Council hereby makes the following regulations, namely-
1. Short Title and Commencement-
(1) These Regulations may be called the National Council for Teacher Education (Determination and Minimum Qualifications for Persons to be recruited as Education Teachers and Physical Education Teachers in Pre-primary, Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges) Regulations, 2014.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. Applicability-
These Regulations shall be applicable for recruitment of teachers and Physical Education Teachers in any recognised school imparting Pre-primary, Primary, Upper Primary, Sceondary or Senior Secondary or Intermediate Schools or Colleges imparting senior secondary education:-
Explanation:- For the purpose of this regulation, the term "School" includes-
(I) A school established, owned and controlled by the Central Government, or the State Government or a local authority.
(ii) A school receiving aid or grants to meet whole or par of its expenses from the Central Government or the State Government or a Local Authority;
(iii) A school not receiving any aid or grants to meet whole or part of its expenses from the Central Government or the State Government or a Local Authority.
4. Qualifications for Recruitment-
(a) The qualification for recruitment of teachers in any recognized school imparting Pre-primary, Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges imparting senior secondary education shall be as given in the First and Second Schedule(s) annexed to these Regulations.
(b) For promotion of teachers the relevant minimum qualifications as specified in the First and Second Schedule(s) are applicable for consideration from one level to the next level.
5. Power to relax
Where the Council is satisfied on receipt of reference from the concerned State Government that special circumstances exist warranting relaxation of some of the provisions of the Regulations, it may grant relaxation of that provision to such extent, for such time period and subject to such conditions and limitations as it may consider necessary, in a just and equitable manner;
Provided, that no relaxation, shall be granted under these Regulations with regard to the minimum qualification for appointment of teachers for Level 3 (Class I to VIII) as specified in the First Schedule.
6. Interpretation
If any question arises relating to interpretation of these Regulations or equivalence of various teacher's training programmes, the Council shall decide same.
First Schedule
(See Sub-regulation (2) of Regulation (4)
The National Council for Teacher Education (Determination of Minimum Qualification for persons to be recruited as Education Teachers in Pre-primary, Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges) Regulations, 2014.
LEVEL
MINIMUM ACADEMIC AND PROFESSIONAL QUALIFICATIONS
1 Pre-School/Nursery (For children in the age group of 4-6 years)
a.(i) Senior Secondary (Class XII or its equivalent from recognised board with at least 50% marks
OR
(ii) Senior Secondary (Class XII or its equivalent) from recognised boad with at at least 45% marks in accordance with the National Council for Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002.
And;
b. Diploma in Nursery Teacher Education/Pre-School Education/Early Childhood Education Programme (D.E.C.Ed.) of duration of not less than two years or B.Ed. (Nursery) from National Council for Teacher Education recognised institution.
2 Pre-School/Nursery followed by first two years in a formal school
3. Primary and Upper Primary (For Classes I to VIII)
Minimum qualifications as laid down by National Council for Teacher Education vide its notification dated 23.08.2010 as amended from time to time issued in exercise of the powers conferred under Sub-section (1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009)
4.Secondary/High School (For Classes IX-X)
(a) Graduate/Post Graduate from recognised University with at least 50% marks in either Graduation or Post Graduation (or its equivalent) and Bachelor of Education (B.Ed.) from National Council for Teacher Education recognised institution.
(b) Graduate/Post Graduate from recognised University with at least 45% marks in either Graduation or Post Graduation (or its equivalent) and Bachelor of Education (B.Ed.) from National Council for Teacher Education recognized institution {in accordance with the National Council for Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002 and National Council for Teacher Education Programme (Recognition Norms and Procedure) Regulations, 2007 notified on 10.12.2007)
Or
(c) 4-year degree of B.A.Ed/B.Sc.Ed. From any National Council for Teacher Education recognised institution.
5. Senior Secondary Intermediate (For Classes XI-XII)
(a) Post Graduate with at least 50% marks (or its equivalent) from National Council for Teacher Education recognised institution.
OR
(b) Post Graduate with at least 40% marks (or its equivalent) from recognised University and Bachelor of Education (B.Ed.) from National Council for Teacher Education recognised institution (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002 and National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2007 notified on 10.12.2007.
OR
(c) Post Graduate with at least 50% marks (or its equivalent) from recognized University and B.A.Ed./B.Sc.Ed. from any NCTE recognised institution.
Second Schedule
{See Sub-regulation (2) of Regulation (4)}
The National Council for Teacher Education (Determination of Minimum Qualification for Persons to be recruited as Physical Education Teachers in Primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges) Regulations, 2014.
LEVEL
MINIMUM ACADEMIC AND PROFESSIONAL QUALIFICATIONS.
Primary and Upper Primary (For Classes I to VIII)
(a) Senior Secretary (Class XII or its equivalent) with at least 50% marks from recognised board.
Or
Candidates who have passed the Senior Secondary examination (+2) or its equivalent and have participated in sports/games at least school/college/district level in accordance with the and National Council for Teacher Eduction (Recognition Norms and Procedure) Regulations 2007 notified on 10.12.2007
Or
Senior Secondary (Class XII or its equivalent) with at least 45% marks from recognised board (in accordance with the National Council for Teacher Eduction (From of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002.
And
(b) Certificate /diploma in Physical Education of duration not less than two years (or its equivalent) from any National Council for Teacher Education recognised institution.
2. Secondary High School (For Classes IX-X)
Bachelor's degree with Physical Education an elective subject with 50% marks.
Or
Bachelor's degree with Physical Education as an elective subject with 45% marks and participation in National or State or Inter-University competitions in sports or games or athletics recognised by Association of Indian University or Indian Olympic Association.
Or
Bachelor's degree with 45% marks and having participated in National Or State or Inter-University Sports or games or athletics.
Or
For deputed in-service candidates ( i.e. trained Physical Education Teachers/Coaches)- Graduation with 45% marks and at least 3 years of teaching experience as per National Council for Teacher Education (Recognition Norms & Procedure )Regulations, 2009.
Or
Graduate in Physical Education with 40% marks.
Or
Graduate with Physical Education ass an elective subject with 40% marks.
Or
Graduate who participated school, Inter-Collegiate in sports/games or passed NCC "C" Certificate in accordance with the National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2007 notified on 10.12.2007)
Or
Graduate in Physical Eduction i.e. B.P.Ed. Course ( or its equivalent) of 3 years duration.
Or
Graduate having represented State /University in sports/games/athletics
Or
Graduate who has secured 1st,2nd or 3rd position in Inter-Collegiate sports' games tournaments/ possessing NCC "C" Certificate or passed basic course in Adventure
Sports.
Or
Graduate with one year training programme in Sports Science, Sports Management Sports Coaching, Yoga , Olympic Education, Sports Journalism etc .(in accordance with the National Council for Teacher Eduction (From of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002
And
(b) Bachelor of Physical Eduction (P.P.Ed.) of at least one year duration (or its equivalent) from any National Council for Teacher Education recognised institution.
3. Senior Secondary Intermediate For Classes XI-XII
Bachelor of Physical Education (B.P.Ed.) or Bachelor of Physical Education (BPE) or Bachelor of Science (B.Sc.) in Health and Physical Education and Degree in Sports with at least 55% marks as per National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2009
OR
At least 50% marks in the B.P.Ed. Degree/B.P.Ed. (Integrated) 4 years professional degree in accordance with the and National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2007 notified on 10.12.2007)
OR
B.P.Ed. with at least 55% marks or B.P.E. Course (or its equivalent) of 3 years duration with at least 50% marks in accordance with the National Council for Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002.
And
(e) M.P.Ed. of at least 2 years duration from any National Council for Teacher Education recognised institution.
On the parameters of the provision that have been quoted above, now the respective arguments are being examined. The first issue that has been raised on behalf of petitioners-opposite parties before us is that the issue that is being raised is barred by the principle of constructive res-judicata, and such an issue cannot be permitted to be re-agitated. In the said direction before us copy of Special Leave to Appeal has been produced and by placing reliance on the judgement in the case of Forward Construction Company and another vs. Prabhat Mandal PRABHAT MANDAL (REGD.) ANDHERI & ORS. ETC. 1986 (1) SCC 100 request has been made that said issue be answered in favour of petitioner-opposite parties.
In order to understand this aspect of the matter, we will have to refer to the judgement of this Court rendered on earlier occasion in the case of Harsh Kumar (Supra) as well as in the case of Uma Yadav (Supra). A bare perusal of both the judgements would go to show that in both the judgements, a categorical mention has been made as to whether the incumbents hold qualification strictly in accordance with the qualification prescribed by N.C.T.E. has not been decided by us since the matter is of adjudication by the authority concerned and a categorical mention has been made to permit the applicants and such other persons who claims to be holding the qualification within the purview of notification issued by N.C.T.E. on 23rd August, 2010 as amended on 29th July, 2011 to apply for the post of Assistant Teachers for Class I to V, which was the subject matter of advertisement in question. At no point of time, this Court has ever proceeded to permit even those incumbents, who do not hold qualifications strictly in accordance with notification issued by N.C.T.E. and said issue has been left open to be decided by the authorities concerned, in view of this to say that the issue that is being raised is barred by principle of res-judicata, cannot be accepted by us as the Special Leave to Appeal has been filed against these judgements and the same has been dismissed in Limine.
Once the two Division Benches of this Court themselves have left these issues open for the Authorities concerned to decide then as to whether the petitioners-opposite parties holds the qualification strictly in accordance with the notification issued by N.C.T.E. has to be decided on the parameters of the qualification prescribed by N.C.T.E. and in this backdrop the plea of constructive resjudicata is being overruled by us and we proceed to examine the claim on merits.
The learned Single Judge, in the present case, has simply proceeded to allow the writ petition on the premises that this Court in the case of Uma Yadav (supra) has held that qualification prescribed by N.C.T.E. vide notification dated 23rd August, 2010 as amended on 29th July, 2011 will be the eligibility qualification for appointment to the post of Assistant Teacher for teaching Class I to V and following the law laid down by Division Bench in Uma Yadav (supra), the said writ petition has been allowed.
Before us the further issue is as to whether the law laid down by the Division Bench of this Court in the case of Uma Yadav (supra) could have been applied ipso facto even without going to the question as to whether nursery teacher training, a two years' course, was ever recognised by N.C.T.E. for teaching students starting from Class I to V or not.
N.C.T.E. was not at all a party before the learned Single Judge and the learned Single Judge on this bona fide belief that the issue raised is squarely covered by the law laid down in the case of Uma Yadav (supra), proceeded to allow the writ petition and in view of this, as we had no other option, we asked for assistance of N.C.T.E. before us and N.C.T.E. has come up with the specific stand that the course in question that has been pursued by petitioners-respondents from Dau Dayal Mahila P.G. College, Firozabad, which was recognised on 30th April, 2004, has been as per Appendix-4 of Regulation 2002 known as Norms and Standards for Nursery Teacher Education Programme (form of Application for recognition, the time limit of submission of application, Determination of Norms and Standards for Recognition of Teachers Education Programme and permission to start new course of training), Regulation 2002 and N.T.T. course is basically meant for children in the age group of 4-6 followed by first 2 years in a formal education i.e. of children in the age group of 6-8 years as mentioned in Appendix-4 of Regulations, 2002.
N.T.T. course is not recognized under Appendix I or II of N.C.T.E. Recognition (Norms and Procedure) Regulation 2009 as Appendix-I of Regulation 2009 is only meant for Early Childhood Education Programme leading to Diploma in Early Childhood Education (D.E.C.Ed.). Early Childhood Education (E.C.E.) includes Class I and II of the Primary Education and same is of crucial importance from the point of view and perspective of the development of child's language, intelligence and personality. Elementary Teacher Education Programme aims at preparing teachers for elementary stage of education i.e. Classes I to VI/VIII and in Recognition (Norms and Procedure) Regulation 2009, Appendix-I has subsumed Pre-School Teacher Education Programme (P.T.T.) and Nursery Teacher Training Programme (N.T.T.) both i.e. Appendix-3 and 4 of Recognition (Norms and Procedure) Regulation 2002 and said nomenclature has been changed to Diploma in Early Childhood Education (D.E.C.Ed.) as Appendix-1 and N.T.T. course of 2 years duration in Dau Dayal P.G. Mahila College was granted Recognition under appendix-4 of the Regulation 2002 and not at all under the Regulations of 2009.
N.T.T. Course as mentioned in the Government Order dated 30.06.2010 is not at all recognized under the Appendix-1 or 2 of the Regulations 2009 and N.T.T. Course is recognized as per Appendix-4 of the Regulation 2002. Petitioners-opposite party have completed two years course of Nursery Teacher Training from Dau Dayal Mahila (P.G.) College, Firozabad, after they have applied for persuing said Course pursuant to Government Order dated 30.06.2010, wherein categorical mention has been made that in reference of Nursery Teacher Training, Nursery School means where children upto the age of 6 years and below Class I are being imparted instructions. Petitioners-opposite party right from day one knew fully well the nature of course that was pursued by them and the said course/training was designed to impart instructions child below six years of age and to classes below 1st standard. Basic Shiksha Parishad in the State of U.P. does not accord recognition to any Nursery School to run additionally Class 1 and 2. There are three category of institutions (1) Nursery School (ii) Junior Basic School (iii) Senior Basic School. Petitioners-opposite parties can be at the best appointed in Nursery School but they cannot be appointed in Junior Basic School/Senior Basic School.
Once such is the specific stand of N.C.T.E., then we cannot arrive to a conclusion that petitioners-opposite parties, who have proceeded to pursue N.T.T. course from Dau Dayal Mahila P.G. College Firozabad that has received recognition on 13th April, 2004 as per Appendix-4 of Regulation, 2002, can be said to be equipped with the facilities of imparting instructions qua teachers eligible to teach Class I to V.
Once N.T.T. Course as per the petitioners-opposite parties is designed for children in the age group of 4-6 followed by first 2 years in the formal school i.e. of children in the age group of 6-8 years, then the said course in question cannot be carried forward even to the students of Class III to V as it would be going beyond the N.T.T. course that has been designed.
Much emphasis has been laid on the fact that petitioner-opposite parties have cleared Teacher Eligibility Test meant for class 1 to 5 and in view of this, there exclusion in selection on its face value is arbitrary.
We may at this juncture, refer to a Full Bench judgement of our Court in the case of Shiv Kumar Sharma vs. State of U.P. 2013 (6) ADJ 310, wherein view has been taken that teacher eligibility test is an essential qualification that has to be possessed by every candidate who seeks appointment as a teacher of elementary education in Class 1 to 5 as per the notification dated 23.08.2010. Academic Authorities are empowered to fix minimum qualification which is inclusive of Teacher Eligibility Test, and Teacher Eligibility Test has to be passed in addition to the educational/training qualification. Merely because one has undertaken Teacher Eligibility Test, does not mean that he/she fulfils educational/training qualification also.
Consequently, in the facts of the case, the Basic Shiksha Parishad is right at the point of time when it submits that learned Single Judge has erred in giving directions by blindly following the judgement in the case of Uma Yadav (supra) and Harsh Kumar (supra) and in view of this, Special Appeal is allowed. Judgement of learned Single Judge is set aside. Petitioner-opposite parties have received training N.T.T. from an institution entitled to impart training for childhood in the age group of 4-6 followed by two years in formal school, are not eligible to teach class 1 to 5, in Institutions run and managed by Basic Shiksha Parishad.
No order as to cost.
Order Date :- 07.04.2016
A. Pandey
