Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(SC) 1183

SUPREME COURT OF INDIA
B.R. Gavai, Prashant Kumar Mishra, JJ.
Jaiveer Singh and Others – Appellants
Versus
The State of Uttarakhand and Others – Respondents
Civil Appeal Nos. 7871 of 2023 (Arising out of SLP(C) Nos. 23583-84 of 2022), Civil Appeal No. 7872 of 2023 [Arising out of SLP (C) No. 23943 of 2022]
Decided On : 28-11-2023

Advocates appeared:
For the Petitioner(s): Mr. Jatinder Kumar Sethi, D.A.G. Mrs. D. Bharathi Reddy, AOR Mr. Nishant Sharma, Adv. Ms. Adviteeya, Adv. Mr. U K Uniyal, Sr. Adv. Mr. Dhananjay Garg, AOR Mr. Dk Garg, Adv. Mr. Abhishek Garg, Adv. Mr. Ishaan Tiwari, Adv. Ms. Ishita Bist, Adv. Mr. R.p. Bansal, Adv. Mr. Chanakya Gupta, Adv.
For the Respondent(s): Mr. Ashish Kumar Tiwari , AOR Mr. Ghanshyam Singh, Adv. Mr. Sonit Sinhmar, Adv. Mr. Rajnish Kumar Jha, AOR Mr. Jatinder Kumar Sethi, D.A.G. Mrs. D. Bharathi Reddy, AOR Mr. Nishant Sharma, Adv. Ms. Manisha T. Karia, AOR Ms. Nidhi Nagpal, Adv. Mr. Rohan Trivedi, Adv. Ms. Swapnil Baudh, Adv. Mr. Aditya Kesar, Adv. Mr. Arun Kumar, Adv. Mr. Sarang Surendar Chowdhry, Adv. Mr. Shashank Surendar Chowdhry, Adv. Mr. Shivam Surendar Chowdhry, Adv. Mr. Rameshwar Prasad Goyal, AOR Mr. Varinder Kumar Sharma, AOR Mr. Shantanu Sharma Adv, Adv. Ms. Deeksha Gaur Adv, Adv. Mr. Fuzail Ahmad Ayyubi, AOR Mr. Ibad Mushtaq, Adv. Ms. Akanksha Rai, Adv. Mr. Sumeer Sodhi, AOR Mr. Arjun Nanda, Adv. Mr. Dhruv Wadhwa, Adv. Mr. Salman Khurshid, Sr. Adv. Ms. Lubna Naaz, AOR Ms. Tehsheena Z Hussain, Adv. Mr. Ghanshyam Singh, Adv. Mr. Rajnish Kumar Jha, AOR Mr. V K Shukla, Sr. Adv. Ms. Meenakshi Arora, Sr. Adv. Mr. Suryodaya Prakash Tiwari, Adv. Mr. Devendra Kumar Shukla, AOR Ms. Shachi Pandey, Adv. Ms. Keshari Kumar Tiwari, Adv. Mr. Aditya Mishra, Adv. Mr. Narendra Bahadur Tiwari, Adv. Mr. Sahil, Adv. Mr. Amit Kumar Gupta, Adv. Ms. Shreya Singh, Adv. Mr. Onkar Singh, Adv.

IMPORTANT POINTS
(1) A person, to be eligible for appointment as a teacher, must possess such minimum qualifications, as laid down by an academic authority, authorised by Central Government.
(2) Government cannot amend or supersede statutory rules by administrative instructions, but if rules are silent on any particular point, it can fill up gaps and supplement rules and issue instructions not inconsistent with rules already framed.

Headnote:
(A) Right of Children to Free and Compulsory Education Act, 2009 – Section 23 – Appointment on posts of Assistant Teachers (Primary) in State of Uttarakhand – Educational qualification – Validity of 18 months Diploma in Elementary Education (“D.El.Ed.”) conducted through Open and Distance Learning (‘ODL’) mode in elementary education by National Institute of Open Schooling (‘NIOS’) – A person, to be eligible for appointment as a teacher, must possess such minimum qualifications, as laid down by an academic authority, authorised by Central Government – All such teachers working in either Government/Government Aided/Unaided Private Schools, were required to acquire minimum qualifications by 31st March 2019 or they would face dismissal from service – Entire scheme was for the purpose of providing a window to in-service teachers inasmuch as unless they would have acquired requisite qualifications prior to 1st April 2019, they could not have continued to remain in service and would have faced dismissal from service – Acquiring of 2 years Diploma in Elementary Education was a minimum qualification as prescribed under statutory Rules – NCTE, as an expert body, has right to prescribe minimum qualifications – In present case NCTE has done so – High Court has erred in directing State Government to consider candidates who did not qualify as per 2012 Service Rules and as per advertisement based on Service Rules, particularly when 2012 Service Rules and advertisements were not under challenge – High Court could not have issued such a mandamus contrary to such Service Rules – Impugned judgment and order passed by High Court quashed and set aside and writ petitions filed by original writ petitioners dismissed.[Government of Uttarakhand promulgated Uttarakhand Government Elementary Education (Teacher) Service Rules 2012] (Paras 17, 23, 29, 33, 38, 40, 42 and 43)
(B) Administrative Law – Ambit of Administrative Power – Government cannot amend or supersede statutory rules by administrative instructions, but if rules are silent on any particular point, it can fill up gaps and supplement rules and issue instructions not inconsistent with rules already framed – An authority cannot issue orders/office memorandum/executive instructions in contravention of statutory rules – However, instructions can be issued only to supplement statutory rules but not to supplant it. (Para 34)
Facts of the case:
Present appeals challenge common judgment and order dated 14th September 2022 passed by High Court of Uttarakhand at Nainital in a bunch of writ petitions which were filed challenging order dated 10th February 2021 issued by the Secretary, Department of Elementary Education, Uttarakhand, Dehradun vide which he recalled his earlier order dated 15th January 2021. High Court, vide impugned judgment and order, held that the 18 months Diploma in Elementary Education (“D.El.Ed.”) conducted through Open and Distance Learning (‘ODL’) mode in elementary education by National Institute of Open Schooling (‘NIOS’) is a valid Diploma for applying against regular posts of Assistant Teachers (Primary) in State of Uttarakhand. High Court therefore directed State to consider candidatures of petitioners therein for the said post on the basis of applications made by them pursuant to advertisement issued by Department of Elementary Education, Government of Uttarakhand, Dehradun.
Findings of Court:
High Court erred in holding that 18 months Diploma conducted by NIOS through ODL mode is equivalent to 2 years regular Diploma, particularly so, when there was no material placed on record to even remotely hold that such a qualification was recommended by Expert Body NCTE. On the contrary, communication dated 6th September 2019 of NCTE, directives of MHRD so also recognition order dated 22nd September 2017 clearly go on to show that 18 months Diploma was provided as a one time window to in-service teachers to acquire minimum qualifications between 2017 Amendment Act and outer limit of 1st April 2019.
Result : Appeals allowed.

JUDGMENT :

B.R. GAVAI, J.

1. Leave granted.

2. These appeals challenge the common judgment and order dated 14th September 2022 passed by the High Court of Uttarakhand at Nainital in a bunch of writ petitions which were filed challenging the order dated 10th February 2021 issued by the Secretary, Department of Elementary Education, Uttarakhand, Dehradun vide which he recalled his earlier order dated 15th January 2021. The High Court, vide the impugned judgment and order, held that the 18 months Diploma in Elementary Education (for short, “D.El.Ed.”) conducted through the Open and Distance Learning (for short, ‘ODL’) mode in elementary education by the National Institute of Open Schooling (hereinafter referred to as ‘NIOS’) is a valid Diploma for applying against the regular posts of Assistant Teachers (Primary) in the State of Uttarakhand. The High Court therefore directed the State to consider the candidatures of the petitioners therein for the said post on the basis of the applications made by them pursuant to the advertisement issued by the Department of Elementary Education, Government of Uttarakhand, Dehradun.

3. Appeals arising out of SLP(C) Nos. 23583-84 of 2022 are filed by the candidates who are holding the 2 years diploma in elementary education whereas appeal arising out of SLP (C) No. 23943 of 2022 is filed by the State of Uttarakhand.

4. Facts in brief giving rise to the present appeals are as under:

4.1 On 27th August 2009, the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as “RTE Act”) was notified. Sub-section (1) of Section 23 of the RTE Act provided that any person possessing such minimum qualifications, as laid down by an academic authority, authorized by the Central Government, by notifications, shall be eligible for appointment as a teacher. Sub-section (2) thereof enables the Central Government, if it deems necessary, by notification, to relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years. The first proviso to sub-section (2) thereof provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under subsection (1), shall acquire such minimum qualifications within a period of five years. The second proviso to sub-section (2) thereof, which was added by Act 24 of 2017, further provided that a teacher appointed or in position as on the 31st March 2015, who does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017 (hereinafter referred to as “2017 Amendment Act”).

4.2 The Central Government, through Ministry of Human Resource Development, Department of School Education & Literacy (hereinafter referred to as “MHRD”), vide notification dated 31st March 2010 authorized the National Council for Teacher Education (for short, “NCTE”) as the academic authority for laying down the minimum qualifications for a person to be eligible for appointment as a teacher.

4.3 NCTE, vide notification dated 23rd August 2010, prescribed minimum qualifications for a person to be eligible for appointment as a teacher for Class I to VIII.

4.4 In the year 2012, Government of Uttarakhand promulgated Uttarakhand Government Elementary Education (Teacher) Service Rules 2012 (hereinafter referred to as “2012 Service Rules”) by invoking powers conferred under Section 58 of the Uttarakhand School Education Act, 2006. The 2012 Service Rules prescribed minimum eligibility criteria for appointment to the post of Assistant Teachers in Government Elementary Schools in the State of Uttarakhand. The 2012 Service Rules were amended from time to time.

4.5 On 12th November 2014, NCTE notified National Council for Teacher Education (Determination of Minimum Qualifications for Persons to be Recruited as Education Te