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2017 Supreme(Jhk) 731
IN THE HIGH COURT OF JHARKHAND AT RANCHI
SHREE CHANDRASHEKHAR, J.
Ragini Sinha – Petitioner
Versus
State of Jharkhand through its Secretary, School Education Department – Respondent
WP (S) Nos. 4631, 4670, 5128, 5823, 5899, 5931 of 2015 with 157, 762 of 2016
Decided On : 18-03-2017
For the Petitioners: M/s. Manoj Tandon, Shiv Shankar Kumar, Kumari Rashmi, Micky Kumari, Mr. Rajesh Kumar, Mr. Durga Charan Mishra and Mr. Vishal Kumar Singh.
For the Respondents: M/s. Binod Singh, Rahul Kamlesh, Mr. Deepak Kumar Dubey, Mr. R.K. Shahi, Mr. Srijit Choudhary, Ms. Bharti Singh, Mrs. C. Prabha, M/s. Fahad Allam, Vishal Kr. Rai, M/s. Rohit and Shamim Akhtar.
Headnote:Jharkhand Primary School Teachers Appointment Rules, 2012 – Rules 9, 11 and 28 – Right of Children to Free and Compulsory Education Act, 2009 Section 23 – The act of the state to change the qualification prescribed by the NCTE for the appointment of language teachers was challenged – it was contended by the petitioner that he cannot be denied the appointment as assistant teacher (languages) in the Upper primary School just on the ground that he does not possess a degree of bachelors Horns. in Hindi with Hindi as a subject in his graduation – in the same is not prescribed in the rules – if rules do not prescribe the same it cannot be inferred by the state to include additional qualifications for language teachers – As per rules of 2012 and the resolution passed by 2014 it is viewed that there should be uniformity in the rules across the state for the appointment of language teachers – section 23 states that the minimum qualification for the appointment of teacher is to be fixed by NCTE – State of Jharkhand in rules 2012 has included the qualifications as prescribed by NCTE the said rules do not have any kind of contradiction – it provides for specific qualifications for the appointment of graduate trained teachers (languages) – notification of 2014 prescribes the appointment of graduate train teachers, but does not prescribe special educational qualifications of teachers appointed at the post of teacher’s teaching science, social science and languages – any such additional qualification if prescribed in the rules for teachers of mathematics, science, social science does not deviate from the basic rule of minimum qualification and as prescribed in NCTE – Under section 28 state government is allowed the power to supplement the rules, if there is an executive instruction which is not violating the rules then the executive instruction will have supremacy – held, if the rules do not prescribe any minimum particular then the appointing Authority can prescribed standards for selection in the advertisement published. (Paras 7 and 9 to 11)
The necessity of an executive instruction arises only when the rules does not prescribe any guidelines – if executive action is made and it is not violating the rules then the executive action shall have supremacy – where there are no rules appointing authority can make minimum standards for selection in the advertisement published. (Para 10)
Jharkhand Primary School Teachers Appointment Rules, 2012 – Rules 9 and 11 – Appointment of teacher (languages) in Upper primary School – it was contended that the words “with language at graduation level” in the notification also include graduation done from Modern Indian languages – held, if a person has done graduation from M I L he will be eligible for the appointment as a language teacher – it is understood that while language teachers are appointed there is a requirement of having a specific qualification in that language, it is similar to that of having specific knowledge of maths for a maths teacher science for a science teacher – a language teacher is different from other teachers is different from a science and also from a social science teacher – appointment of a language teacher having graduation from MIL should have language as a compulsory subject in his graduation – The qualifications required for the language teacher are contextual interpretation, one must possess a degree of graduation in languages – the contention of the petitioner is accepted by the court there will be only two kind of teachers – for the appointment of a language teacher there should be subject specific qualifications for the appointment at the upper primary school level – there should be a close nexus with in – depth knowledge of the subject which the teacher should have – therefore there should be one language at the graduation level of the applicant – there should be specific qualification for the appointment of a maths teacher, science teacher, social science teacher – at the graduation level all petitioners were compulsorily having subjects which are included in the MIL syllabus – petitioners are not eligible to be appointed as teachers of language. (Paras 12 to 15 and 19)
School Laws – Appointment Language Teacher – petitioner contended that he has a graduate degree of bachelor of honours in labour and social welfare – such degree of the petitioner qualifies him for the position of a lecturer of mother languages as well as he had Hindi as language in his graduation which also made him eligible to be admitted in MA in Hindi course – since the MA in Hindi was conducted in distant learning and absence of brochures – the degree awarded to the petitioner for Masters in Hindi is not from the same university – a Masters in Hindi cannot be made eligible for the appointment of a post of assistant teacher languages.(Para 15)
School Laws – Appointment – the teacher eligibility test is a mandatory test to be given by all the candidates – the results of the teacher eligibility test does not conclusively decide the appointment of the candidate – the test only determines as to which candidate is to be considered for the appointment, since there are different standards for different subjects to be considered. (Para 16)
Interpretation of Statutes – interpretation which reduces the futility should be avoided even though there are some in exactitude in the language is used. (Para 19)
SHREE CHANDRASHEKHAR, J.
1. With a little difference in facts and few variations in the prayer, all these writ-petitions raise a common question, whether for appointment to the post of teacher (Languages) in Upper Primary School (Class-VI to VIII), a qualification of Graduation with Language as one of the Elective/Subsidiary subjects is mandatory or a Graduate in Mathematics/Science or Social Sciences with MIL as a compulsory subject is also eligible for appointment as a Language Teacher in Upper Primary Schools? Answer to this question requires an in-depth examination of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as RTE Act) and the Notifications issued by the National Council for Teacher Education.
2. The RTE Act, 2009 was enacted to provide for free and compulsory education to all children of the age of six to fourteen years. It received the assent of the President on 26.8.2009 and was published in the Gazette of India on 27.8.2009. The Schedule appended to the RTE Act, 2009 provides norms and standards for the schools. For Class-I to V, for every 60 children in a school there shall be a minimum of 2 teachers. The number of teachers has been increased in proportion to the number of children in a school. The Schedule mandates that the pupil-teacher ratio (excluding Head-Teacher) shall not exceed forty. In contra-distinction to the norms and standards for Class-I to V, the Schedule prescribes subject-teachers for Class-VI to VIII. It provides that at least one teacher, each, for (i) Science/Mathematics, (ii) Social Sciences and (iii) Languages, shall be appointed for every 35 children in a school for Class-VI to VIII, and where the number of children is above one hundred there shall be one Full-time Head-Teacher and Part-time Instructors for (i) Art-education, (ii) Health and Physical education and (iii) Work education.
3. The authority authorized by the Central Government under Section 23 of the RTE Act, 2009 is authorized to lay down minimum qualifications for appointment as a teacher. A National Council for Teacher Education has been established under Section 3 of the NCTE Act, 1993. The Council has been established with a view to achieve planned and coordinated development for the teacher education system throughout the country, and for regulation and proper maintenance of norms and standards in the teacher education system and for the matters connected therewith. The National Council for Teacher Education, established by the NCTE Act, 1993, is the academic authority authorized by the Central Government to lay down minimum qualifications for appointment as a teacher, which by a Notification dated 23.8.2010 laid down such minimum qualifications. This notification was amended vide Notification dated 29.7.2011. The amendment was necessitated in the wake of representations received from the State Governments and other stake-holders for including B.Com. degree in addition to B.A./B.Sc. as one of the qualifications for appointment as a teacher. While Notification dated 23.8.2010 prescribed the educational qualification of B.A./B.Sc. the amended notification simply says Graduation. By Notification dated 29.7.2011, the NCTE has laid down the following "minimum qualifications" for appointment as a teacher for Class-VI to VIII:
(a) Graduation and 2-years Diploma in Primary Education (by whatever name known).
OR
Graduation with at least 50% marks and 1-year Bachelor in Education (B.Ed.).
OR
Graduation with at least 45% marks and 1-year Bachelor in Education (B.Ed.) in accordance with the NCTE (Recognition Norms and Procedures) Regulations issued from time to time in this regard.
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor in Primary Education (B.EI.Ed.).
OR
Senior Secondary (or its equivalent) with at least 50% marks and 4-year B.A./B.Sc.Ed. OR
