K.M.THAKER

1. The petitioners, in this group of petitions, have in substance, brought under challenge:-

1. The validity of “ The Head Teacher, Class-III, in the subordinate service of the Directorate of primary or respective District or Municipal Primary Education Committee Recruitment Rules, 2012” (herein after referred to as Rule of 2012)

2. The qualification criteria prescribed, by Notification for appointment on the post of Head Teacher.

3. The instruction – directions describing the nature and quality of proof demanded for verifying compliance as to requisite experience.

4. The provision prescribing upper age limit.

1.1 The fulcrum of the grievance and challenge is the process of promotion / appointment to the post of Head Teacher and the qualification criteria prescribed by respondent State and the method or parameters for verification of compliance prescribed by the authority. The petitioners are aggrieved by different provisions under the said Rules of 2012.

1.2 The petitioners have, for the said purpose, challenged

1. Notification dated 18.1.2012 whereby the Rules have been brought in force.

2. Resolution dated 29.2.2012

3. Rule 2(a)(iii), Rule 4(a), Rule 4(b)(1) Rule 4(b)(2)(ii) Rule 4 (d).

1.3 Those petitioners who are already working as Head Teacher apprehend that the said duty will be taken away after recruitment of Head Teachers pursuant to the impugned process. Hence they have also claimed that it may be declared that the candidates who are appointed as primary teacher on basis of the qualification of SSC/HSC with PTC and are working as Head Teacher being the senior most teacher are eligible to be appointed as Head Teacher.

1.4 The petitioners are primary teachers either in self finance primary schools or primary schools run by local authorities/District Education Committee or private primary schools receiving grant from the State. Some of them are also working as Head Teacher since last few years.

1.5 Since the grievance and challenge raised in all petitions are intertwined and magnetically drawn to the common issues and contentions and since the respondent State has put forward common defence, the rival contentions are considered under this common order.

In view of the subject matter of this group of petitions and considering the joint requests by learned advocates for contesting parties for final decision, with consent of learned advocates for petitioners and learned Government Pleader the captioned petitions are taken up for hearing and final decision.

Factual Background

2. Until 2009 the matters related to primary education in the State was regulated by the provisions under Bombay Primary Education Act 1947 (hereinafter referred to as the “State Act”) and “Bombay Primary Education Rules, 1949” (hereinafter referred to as “State Rules”).

2.1 Then parliament enacted the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as the “Central Act”) and in exercise of powers conferred by Section 38 of the Central Act, the Central Government made “The Right Of Children To Free and Compulsory Education Rules, 2010 (hereinafter referred to as the ‘Central Rules’). Besides this, in exercise of powers conferred by subsection (1) of Section 23 of the Central Act, NCTE issued notification dated 23rd August 2010 laying down eligibility criteria for appointment as teacher in 1st standard to 5th standard and 6th standard to 8th standard. Moreover “National – Council for Teacher Education Act, 1993 (hereinafter referred to as ‘NCTE Act”) has been enacted and NCTE has framed “National – Council for Teacher Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulations, 2001” (NCTE Rules, for short)

2.2 With the enactment of the Central Act substantial and qualitative changes in the system of primary education are introduced and brought in force. Until the enactment of Central Act the division of primary education comprised 1st Standard to 7th Standard while seconda