Hon’ble Sudhanshu Dhulia, J. (Oral)

Heard Mr. D.K. Joshi and Mr. Pradeep Hairiya, Advocate for the petitioners, Mr. N.P. Sah, Standing Counsel and Mr. Anil Kumar Bisht, Brief Holder for the State of Uttarakhand, Mr. V.B.S. Negi, Assistant Solicitor General for the Union of India, Mr. Sudhir Singh, Advocate for the National Council for Teacher Education and Ms. Seema Sah, Ms. Geeta Parihar and Mr. Asif Ali, Advocates for the “Uttarakhand Vidyalayi Shiksha Parishad”.

2. While one may take a just pride in the progress the country has made since its independence, yet one cannot fail to notice some crucial sectors which remained rather neglected. “Elementary education”, being one of them.

3. All the same, things are now looking for better with the Right to Education being incorporated as a Fundamental Right, in Part III of the Constitution of India, vide Constitution (Eighty Sixth Amendment) Act. The newly incorporated provision which is Article 21-A of the Constitution of India reads as follows :-

“21-A. Right to education. – The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”

4. In furtherance to the above, the Parliament enacted a legislation known as, Right to Children to Free and Compulsory Education Act, 2009 (from hereinafter referred to as the Act), which not only seeks to provide every child a right to elementary education, but a right to a “meaningful” elementary education.

5. One of the important features of this Act is that it seeks to give the nation a better quality of teachers who will impart elementary education, which has now become compulsory. Before this Court is now under challenge the validity of a “test” known as “Teachers Eligibility Test” (for short, TET) which one must qualify with 60% of marks, in order to become eligible as a teacher in an elementary school. What is also challenged before this Court is the “eligibility” prescribed for a candidate to even appear for this test i.e. TET. This Court has been called upon to examine the validity of the above two conditions.

6. Prior to the constitutional 86th Amendment free and compulsory education for all children (upto 14 years of age) was in Part IV of the Constitution of India as a Directive Principle of State Policy. Article 45 of the Constitution of India reads as follows :-

“45. Provision for early childhood care and education to children below the age of six years. – The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.”

7. Now from a mere directive to the State, as it was earlier, it is now a Fundamental Right, which is Article 21-A of the Constitution of India as now “the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine”. In furtherance thereof came the Act already referred above. The statement of Objects and Reasons of this Act reflect the importance of this legislation, where it is stated thus – “over the years there has been significant spatial and numerical expansion of elementary schools in the country, yet the goal of universal elementary education continues to elude us. The number of children, particularly children from disadvantaged groups and weaker sections, who drop out of school before completing elementary education, remains very large. Moreover, the quality of learning achievement is not always entirely satisfactory even in the case of children who complete elementary education”. What the Act seeks was also summarized in its Objects and Reasons as follows :-

“(a) that every child has a right to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards;

(b) “compulsory education” casts an obligation on the appropriate Government to provide and ensure