Provincialisation of teachers' services must adhere to qualifications on the date of provincialisation, not on the date of entry into service.

JUDGMENT And ORDER :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. S. Borthakur, learned counsel for the petitioners and Mr. B. Kaushik, learned Standing counsel, Elementary Education Department, Assam for the respondent Nos. 1 & 2.

2. The services of the petitioners herein were provincialised as ‘Tutors’ under the Assam Education (Provincialisation of Services of Teachers and Re-organisation of Education Institution) Act, 2017 (hereinafter referred to as the Act, 2017).The grievance of the petitioners is that their services could not have been provincialised as ‘Tutors’ rather their services ought to have been provincialised as ‘Teachers.’

3. It is not disputed by Mr. Borthakur, learned counsel for the petitioners that in terms of Section 4 of the Act 2017, the services of any teacher/tutor etc., provincialised under the aforesaid Act 2017, will take effect from the publication of order of the provincialisation in the Official Gazette.

4. It is also not disputed that on the date of publication of such Notification of provincialization of services of the petitioners as Tutors, the petitioners, though were having all other qualifications but were not having the TET qualification and for this reason, the services of the petitioners were provincialised as Tutors instead of Teachers.

5. It is the argument of Mr. Borthakur, learned counsel for the petitioners that such action on the part of the respondent authorities is not legally sustainable, in view of certain prescriptions made under the National Council for Teachers Education Act, 1993 (as amended) (hereinafter referred to as the NCTE Act, 1993) as well as the Rules and Regulations and the Notification framed thereunder.

6. Referring to Section 12 A of the NCTE Act 1993, Mr. Borthakur, learned counsel for the petitioners contends that the National Council For Teacher Education (hereinafter referred to as NCTE) is empowered to frame regulation, determine qualification for persons being recruited as teachers in any Primary, Upper Primary, Pre-Primary Secondary, Senior Secondary schools and all the intermediate Schools or Colleges (by whatever name it is called). It is the contention of Mr. Borthakur that in terms of Section 2 (ka) of the NCTE Act, 1993 (as amended), a school which is not receiving any aid or grant to meet whole or part of its expenses from the State Government, Central Government or a local authority, also comes under definition of a school and therefore, the venture schools of the petitioners shall also come under the definition of schools as well as shall be governed by the NCTE Act and Rules framed thereunder.

7. According to Mr. Borthakur, the requirement of the TET certificate is exempted for those teachers, who entered into service of a school prior to 03.09.2001 in terms of the Notification dated 23.08.2010, which prescribes the minimum qualification for being appointed as teachers in classes I-VIII, to which category the petitioners belong. As the petitioners' schools are under the purview of the NCTE Act’1993 and the petitioners entered into service at the venture stage prior to the aforesaid cutoff date, when TET was not made mandatory, the petitioners are entitled for provincialization as Teachers and not as Tutors inasmuch as such teachers are protected.

8. Referring to Section 2 (t) of the Act, 2017, which deals with the definition of ‘Teacher’, Mr. Borthakur, contends that a person is treated to be a teacher, when said teacher enters into the service at the venture stage having required qualification under the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as RTE, Act, 2009) and NCTE Act, 1993 etc. and the relevant rules and regulation framed thereunder, a harmonious construction of these Acts, i.e., RTE Act, 2009 NCTE Act and the Act, 2017 is necessary. According to him, it is not in dispute that the petitioners did have required qualification at the relevant point of time, when they entered into service at the venture stage of