D.N. Patel, J.

1. This Letters Patent Appeal has been preferred by the original respondent No.1 of W.P.(S) No. 1897 of 2013. The writ petition was preferred by the original petitioners-respondents herein which was allowed by the learned Single Judge vide order dated 26th September, 2013. The respondents (Original petitioners) who were wrongly offered the post of teachers, are now offered the post of clerks, because these respondents had not cleared the Teachers Eligibility Test as required under the notification issued by the National Council of Teachers' Education (hereinafter referred as 'N.C.T.E.') under Sub-Section 1 of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009.Though this minimum qualification or eligibility was not with the respondents, they were given appointment as teachers in Primary Schools on compassionate basis on account of death of their respective father/mother/husband. In fact, there is no termination of the services of the respondents by the State of Jharkhand. The respondents who were appointed on compassionate basis as teachers vide appointment letters dated 20th September, 2012 are now offered the post of clerks vide order dated 18th February, 2013 and 7th March, 2013 and the posts of teachers given to them have been withdrawn. In fact, on earlier occasion an error was committed by the State of Jharkhand by giving them appointment as teachers in violation of the provisions of Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred as Act, 2009), to be read with the notification issued Under Section 23(1) thereof by N.C.T.E. and now this mistake has been rectified by the State by offering them the post of clerk which is also Class-III post, on compassionate basis. This order of offering the respondents the post of clerk instead of the posts of teacher was under challenge by original petitioners – respondents herein by way of W.P.(S) No. 1897 of 2013, which was allowed by the learned Single Judge vide order dated 26th September 2013 and, therefore, the respondent State of Jharkhand and others have preferred this Letters Patent Appeal.

2. Counsel appearing on behalf of State has submitted that father/mother/husband of the respondents have expired during their services with the State of Jharkhand and, therefore, the respondents applied for appointment on compassionate basis.

Counsel for the State further submitted that:-

Respondents can be appointed on Class-III as well as on Class-IV post, but, as they have not cleared teachers eligibility test (hereinafter referred to as TET for the sake of brevity) they cannot be appointed to the post of teachers in view of the provisions of the Act, 2009, Section 23 thereof prescribes qualification for appointment and terms of services of teachers. This law has been enacted keeping in mind Entry No.25 of concurrent list No.-III of 7th Schedule of the Constitution of India and as per Section 23 of the Act, 2009 Central Government has authorized N.C.T.E. who had issued a notification dated 23rd/25th of August, 2010 in exercise of the powers under sub-section (1) of Section 23 of the Act, 2009, whereby for the Primary Teachers it has been mentioned that a candidate must have minimum 50% of the marks in Senior Secondary Examination + two years diploma in education + must have passed teachers eligibility test, can be appointed as teachers.

The aforesaid qualification is statutory in nature for which necessary instructions have also been issued from time to time by Principal Secretary, Human Resources Development Department, Government of Jharkhand. One of such instructions is dated 4th June, 2012 (Annexure 6 to the memo of this LPA). Similarly Central Government has also written several letters, one of which is dated 7th May, 2012 which is at Annexure-7 to the memo of this LPA. From these letters it will be more clear that unless and until the minimum qualification is achieved by a candidate, he cannot be appoi